Proposed Rule2024-27095
Administrative Requirements; Pittman-Robertson Wildlife Restoration and Dingell-Johnson Sport Fish Restoration Acts
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Published
December 2, 2024
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service, are proposing to update the regulations pertaining to Federal financial assistance programs and subprograms authorized under the Pittman-Robertson Wildlife Restoration Act and the Dingell-Johnson Sport Fish Restoration Act. We propose these updates to our regulations to ensure they reflect recent legislation; to align with the Office of Management and Budget's administrative rules for Federal financial assistance; to align with other laws, standards, and administrative processes; to respond to comments and feedback on our 2019 rulemaking action; and to provide clarity to help ensure consistency in administering our financial assistance programs and subprograms across the Nation.
Full Text
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[Federal Register Volume 89, Number 231 (Monday, December 2, 2024)]
[Proposed Rules]
[Pages 95590-95624]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-27095]
[[Page 95589]]
Vol. 89
Monday,
No. 231
December 2, 2024
Part IV
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 80
Administrative Requirements; Pittman-Robertson Wildlife Restoration and
Dingell-Johnson Sport Fish Restoration Acts; Proposed Rule
Federal Register / Vol. 89 , No. 231 / Monday, December 2, 2024 /
Proposed Rules
[[Page 95590]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 80
[FWS-HQ-WSFR-2023-0125; FVWF51100900000-XXX-FF09W11000;
FVWF94100900000-XXX-FF09W11000]
RIN 1018-BB84
Administrative Requirements; Pittman-Robertson Wildlife
Restoration and Dingell-Johnson Sport Fish Restoration Acts
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service, are proposing to
update the regulations pertaining to Federal financial assistance
programs and subprograms authorized under the Pittman-Robertson
Wildlife Restoration Act and the Dingell-Johnson Sport Fish Restoration
Act. We propose these updates to our regulations to ensure they reflect
recent legislation; to align with the Office of Management and Budget's
administrative rules for Federal financial assistance; to align with
other laws, standards, and administrative processes; to respond to
comments and feedback on our 2019 rulemaking action; and to provide
clarity to help ensure consistency in administering our financial
assistance programs and subprograms across the Nation.
DATES: We will accept comments received or postmarked on or before
January 31, 2025.
Information collection requirements: If you wish to comment on the
information collection requirements in this proposed rule, please note
that the Office of Management and Budget (OMB) is required to make a
decision concerning the collection of information contained in this
proposed rule between 30 and 60 days after the date of publication of
this proposed rule in the Federal Register. Therefore, comments should
be submitted to the Service Information Collection Clearance Officer,
U.S. Fish and Wildlife Service, (see ``Information collection
requirements'' below under ADDRESSES) by January 31, 2025.
ADDRESSES: You may submit comments, identified by the regulation
identifier number 1018-BB84, by any of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. In the Search box, enter FWS-HQ-WSFR-2023-0125,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the panel on the left side of
the screen, under the Document Type heading, check the Proposed Rule
box to locate this document. You may submit a comment by clicking on
``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-HQ-WSFR-2023-0125, U.S. Fish and Wildlife
Service, MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on <a href="https://www.regulations.gov">https://www.regulations.gov</a>. This
generally means that we will post any personal information you provide
us (see Request for Comments, below, for more information).
Information collection requirements: Send your comments on the
information collection request by mail to the Service Information
Collection Clearance Officer, U.S. Fish and Wildlife Service, by email
to <a href="/cdn-cgi/l/email-protection#b3faddd5dcecf0dcdfdff3d5c4c09dd4dcc5"><span class="__cf_email__" data-cfemail="4e07202821110d2122220e28393d60292138">[email protected]</span></a>; or by mail to 5275 Leesburg Pike, MS: PRB (JAO/
3W), Falls Church, VA 22041-3803. Please reference OMB Control Number
1018-0100 in the subject line of your comments.
FOR FURTHER INFORMATION CONTACT: Diana Swan-Pinion, Wildlife and Sport
Fish Restoration Program, Policy, and Programs Branch at <a href="/cdn-cgi/l/email-protection#57333e36393608242036397a273e393e38391731202479303821"><span class="__cf_email__" data-cfemail="187c71797679476b6f797635687176717776587e6f6b367f776e">[email protected]</span></a> or (404) 821-6844. Individuals in the United States who
are deaf, deafblind, hard of hearing, or have a speech disability may
dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay
services. Individuals outside the United States should use the relay
services offered within their country to make international calls to
the point-of-contact in the United States. In compliance with the
Providing Accountability Through Transparency Act of 2023, please see
docket FWS-HQ-WSFR-2023-0125 on <a href="https://www.regulations.gov">https://www.regulations.gov</a> for a
document that summarizes this proposed rule.
SUPPLEMENTARY INFORMATION:
Background
The U.S. Fish and Wildlife Service's (Service) Wildlife and Sport
Fish Restoration Program (WSFR) annually apportions to fish and
wildlife agencies of States, Territories, and the District of Columbia
more than $1.6 billion for programs and subprograms under the Pittman-
Robertson Wildlife Restoration Act (Wildlife Restoration Act, 50 Stat.
917, as amended; 16 U.S.C. 669 et seq.) and the Dingell-Johnson Sport
Fish Restoration Act (Sport Fish Restoration Act, 64 Stat. 430, as
amended; 16 U.S.C. 777-777m, except 777e-1 and g-1) (Acts). We are
proposing to update the regulations in title 50 of the Code of Federal
Regulations (CFR) at part 80, which is titled, ``Administrative
Requirements, Pittman-Robertson Wildlife Restoration and Dingell-
Johnson Sport Fish Restoration Acts.''
The primary users of these regulations are the fish and wildlife
agencies of the 50 States; the Commonwealths of Puerto Rico and the
Northern Mariana Islands; the territories of Guam, the U.S. Virgin
Islands, and American Samoa; and the District of Columbia (DC). We use
``State'' or ``States'' collectively to refer to these entities. The
Wildlife Restoration Act does not authorize funding for DC, which
receives funds only under the Sport Fish Restoration Act.
These regulations tell States how they may receive annual
apportionments from the Federal Aid to Wildlife Restoration Fund (16
U.S.C. 669b) and the Sport Fish Restoration and Boating Trust Fund (26
U.S.C. 9504), how they may use hunting and fishing license revenues,
and what requirements States must follow when participating in the
programs and subprograms under the Acts. These programs and subprograms
provide financial assistance to State fish and wildlife agencies to
restore or manage wildlife and sport fish and associated habitats;
offer hunter and recreational shooter education and safety programs,
development, recruitment, retention, and reactivation; develop and
increase recreational boating access; enhance the public's
understanding of water resources, aquatic life forms, and sport
fishing; and develop responsible attitudes and ethics toward aquatic
and related environments.
Assistance Listings for these programs may be found at: <a href="https://sam.gov/content/assistance-listings">https://sam.gov/content/assistance-listings</a>. On that website, search for
numbers 15.605, 15.611, and 15.626 using the ``Search Assistance
Listings'' function.
We published the last revision of these regulations with a proposed
rule in 2017 (82 FR 59564, December 15, 2017) and a final rule in 2019
(84 FR 44772, August 27, 2019; referred to below as ``the 2019 final
rule''). Our December 15, 2017, proposed rule was intended to be the
first step in a phased approach to updating 50 CFR part 80 over a
period of a few years, addressing multiple topics of concern, and
ultimately leading to publishing a final rule that addressed all issues
identified as important to resolve. A team of Federal and State subject
matter experts
[[Page 95591]]
were engaged in developing the strategy and topics to be addressed.
Unfortunately, that process was stalled, and we were unable to complete
the phased approach, so we published a final rule in 2019 that did not
include all identified topics.
The passage of two new laws in 2019 that amended the Wildlife
Restoration Act compels the Service to reflect those changes in this
proposed rule. In 2019, the Target Practice and Marksmanship Training
Support Act (Pub. L. 116-17, May 10, 2019) amended the Wildlife
Restoration Act to provide administrative advantages for States engaged
in acquiring land for, expanding, and constructing public target
ranges, and the Modernizing the Pittman-Robertson Fund for Tomorrow's
Needs Act (Pub. L. 116-94, December 20, 2019) amended the Wildlife
Restoration Act to provide additional eligible activities focused on
increasing communication and participation in hunting and recreational
shooting. This statutory update also provided the Service the
opportunity to consider topics that were left unresolved from the
phased approach begun with our 2017-2019 rulemaking process, as well as
to incorporate principles established through continued collaborative
engagement between the Service, States, and partners into the
rulemaking process.
On September 30, 2019, the Service issued ``Interim Guidance for
Applying Public Law 116-17, the Target Practice and Marksmanship
Training Support Act, to the Pittman-Robertson Wildlife Restoration
Act'' (interim guidance; <a href="https://www.fws.gov/guidance/sites/guidance/files/documents/WSFR%20Interim%20Guidance%20Implementing%20PL%20116/17-FINAL.pdf">https://www.fws.gov/guidance/sites/guidance/files/documents/WSFR%20Interim%20Guidance%20Implementing%20PL%20116/17-FINAL.pdf</a>), and on July 14, 2021, the Service issued ``Implementing the
Modernizing the Pittman-Robertson Fund for Tomorrow's Needs Act''
(<a href="https://www.fws.gov/guidance/sites/guidance/files/documents/Implementing_the_Modernizing_the_PittmanRobertson_Act.pdf">https://www.fws.gov/guidance/sites/guidance/files/documents/Implementing_the_Modernizing_the_PittmanRobertson_Act.pdf</a>). Each of
these documents has provided WSFR and States with guidance for how to
apply the amendments to the Acts to grants, enhance understanding, and
strive for consistency, while we developed proposed updates to the
regulations. When published and effective, the final rule for this
proposed rule will supersede these guidance documents where there are
differences; however, we intend for the guidance documents and any
updates to them to continue to provide supplemental information that
will assist WSFR and States in administering financial assistance
awards. WSFR intends to continue to provide policy and training support
on eligible activities under the Acts.
The Service was assisted in this rulemaking by the Joint Federal/
State Task Force on Federal Assistance Policy (JTF), an advisory group
that was chartered on September 5, 2002, under an agreement between the
Service and the Association of Fish and Wildlife Agencies to support
the cooperation between the Service and State fish and wildlife
agencies in wildlife and sport fish restoration and management
projects. The JTF is exempt from the Federal Advisory Committee Act
(Pub. L. 92-463, as amended; 5 U.S.C. 1001 et seq.) through the Acts.
The role of the JTF is to consider operational policies and
administrative problems and to recommend solutions. The JTF supported
this rulemaking action by nominating State and Federal subject matter
experts to serve on a pre-regulatory review team to consider proposed
changes and assess them for viability, clarity, applicability, gaps in
understanding, and potential controversy, and provide other support as
requested. The team began work on this endeavor in September 2021 and
had its last meeting in May 2023. During this period, the Service
offered two review-and-comment periods to gather input and encourage
engagement from Service staff in WSFR, State fish and wildlife
agencies, and partners in wildlife and sport fish restoration and
associated outdoor recreation. WSFR also provided six open forums to
encourage active participation and discussion on topics of interest in
the rulemaking process.
In 2013, the Office of Management and Budget (OMB) published
regulations at 2 CFR part 200 (Uniform Administrative Requirements,
Cost Principles, and Audit Requirements for Federal Awards) that
updated and amended rules for Federal financial assistance for all
Federal agencies (78 FR 78608, December 26, 2013). In this proposed
rule to update 50 CFR part 80, we align the terminology we use for
administering financial assistance under the Acts to the terms used in
2 CFR part 200. These proposed revisions would provide consistency
across Federal financial assistance regulations and improve
understanding of applicable Service requirements.
We propose these updates to our regulations to improve clarity,
consistency, readability, and alignment with current administrative
practices, and to reflect the currently applicable laws, standards, and
practices.
Proposed Amendments to Existing Regulations
Even though we are not proposing revisions or additions to every
section in 50 CFR part 80 in this proposed rule, for clarity and
readability, we are setting forth the entire part in this proposed rule
(see Proposed Regulation Promulgation, below).
The regulations at 2 CFR part 200 have a goal to standardize terms
to support standardizing grant management business processes. To
support those efforts and to assist grant management practitioners, we
propose to amend the following terms to align them more accurately with
2 CFR part 200: Award and subaward (primarily replacing grant),
recipient and subrecipient (replacing grantee and subgrantee), and
period of performance (replacing grant period). We propose to insert
the amended terms throughout 50 CFR part 80. We also propose to
incorporate helpful references in 50 CFR part 80 to applicable sections
of 2 CFR part 200.
In the information below, we do not discuss in detail editorial
changes that we propose to improve readability, clarity, consistency,
or continuity. We instead focus on substantive changes to the current
regulations.
Proposed amendments and the rationale for changes are described
here.
I. Subpart A--General
Section 80.1--What does this part do?
We propose to update Sec. 80.1 to include a new purpose under the
Wildlife Restoration Act to facilitate the construction and expansion
of public target ranges (per Pub. L. 116-17) and to add reference to
activities for hunter recruitment and recreational shooter recruitment
(per Pub. L. 116-94).
Section 80.2--What terms do I need to know?
We propose to add the following terms to the definitions section of
the regulations for the following reasons:
[[Page 95592]]
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Proposed new term Purpose
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90/10/5........................... In describing activities associated
with Public Law 116-17 where the
Federal cost share is up to 90
percent (and, therefore, the non-
Federal cost share is 10 percent or
more) and the period of
availability of funds is 5 years
when specifically engaging in
activities for acquiring land for,
expanding, or constructing public
target ranges, we propose to
abbreviate this concept as ``90/10/
5''.
Acquisition....................... Supporting activities associated
with Public Law 116-17 for
acquiring real property for public
target ranges, as well as the
sections of the regulations
pertaining to real property.
Allocate.......................... Supporting the financial action of
assigning funds to associated,
eligible activities.
Allowable......................... Clarifying how we address
permissibility of activities and
costs under 2 CFR part 200
(distinguished from 50 CFR part
80).
Apportioned funds................. Enhancing understanding of the grant
process and how funds are disbursed
to States.
Eligible.......................... Clarifying how we address
permissibility of funding
activities under 50 CFR part 80
(distinguished from 2 CFR part
200).
Equipment......................... Responding to a request to include
this term as defined at 2 CFR part
200 in the regulations at 50 CFR
part 80.
Expanding......................... Supporting activities associated
with Public Law 116-17 for
physically expanding access to
public target ranges, to mean
acquiring land for or constructing
public target ranges, or physical
improvements to an existing public
target range that add to the
utility of the range in a manner
that ultimately increases range
capacity to accommodate more
participants.
Facility.......................... Supporting understanding and
consistency throughout the rule.
Federal fiscal year............... Differentiating the Federal
definition from the State
equivalent term.
Fiscal year....................... Adding as defined under Public Law
116-94 for State license years.
Fish restoration and management Adding a condensed version from the
project. Sport Fish Restoration Act to
provide parity to the definition of
Wildlife restoration project (see
below).
Hunter recruitment and Adding as defined under Public Law
recreational shooter recruitment. 116-94, included in the Act under
16 U.S.C. 669c(c)(4).
Law enforcement................... Resolving a longstanding issue that
has caused confusion and
inconsistencies for what activities
may be eligible under the Acts;
clarifying these parameters would
allow us to broaden the scope of
eligible activities that support
the Acts but do not fall into the
ineligible categories.
Maintenance....................... Clarifying for those instances where
maintenance and operations are not
both eligible activities under a
funding source.
Operations........................ Clarifying for those instances where
maintenance and operations are not
both eligible activities under a
funding source, such as under 90/10/
5 funding where operational
activities are ineligible.
Public............................ Resolving a longstanding issue as to
what constitutes ``the public''
because using Federal assistance
funds for a project and then
limiting access to an exclusive
group is not permissible.
Public access..................... Resolving a longstanding issue as to
physical access to projects funded
under the Acts; supported also by
50 CFR 80.58.
Public relations.................. Adding because Public Law 116-94
removed public relations as a
prohibited activity but 2 CFR part
200 restricts allowability, meaning
public relations activities are not
always eligible.
Public target range............... Adding as defined under Public Law
116-17.
R3................................ Adding as an abbreviation for
``recruiting, retaining, or
reactivating'' and applicable to
both Acts, to support activities
under Public Law 116-94.
Traditional Wildlife Restoration Adding to mean the activities that
program. are funded under apportionments
authorized at 16 U.S.C. 669c(b),
which reflects the original program
funded under the Wildlife
Restoration Act, to support
distinctions in funding sources due
to passage of Public Law 116-17 and
Public Law 116-94.
Wildlife restoration project...... Supporting the part of the
definition from the Wildlife
Restoration Act that is applicable
to the Wildlife Restoration
Program, and not the sections of
the Act amended by Public Law 106-
553 to create the Wildlife
Conservation and Restoration
Program.
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In this proposed rule, we propose to remove a term only when we
replace it with a term that better aligns with 2 CFR part 200 and
current grant management processes. We propose to amend some terms to
update to current standards, such as adding a clause to the term
``construction'' to accommodate projects under Public Law 116-17 for
constructing public target ranges. Upon the advice of State
representatives, we propose to simplify the list of terms by removing
the term ``agency'' as a separate definition and instead adding
``(agency)'' after the term ``State fish and wildlife agency'' to
indicate that those terms mean the same thing. We propose to amend the
term ``angler'' to acknowledge applicable Federal law, as one State
reviewer commented that sometimes fishing in a State involves meeting
standards of both State and Federal laws. Five of the 50 U.S. States
apply for Federal funds using a ``comprehensive management system
(CMS)'' method of operations, which we define at Sec. 80.2. We
consulted representatives from those States to inform the proposed
updates to this term in this proposed rule. We propose to update the
term ``personal property'' to align better with the definition and use
of that term in the Service Manual chapter at 520 FW 6, ``Real
Property--Overview.'' We propose to clarify the term ``subaccount''
based on recommendations from the pre-regulatory review team. We
propose to amend the term ``useful life'' to apply to a capital asset
or equipment in addition to a capital improvement, based on definitions
and other regulatory requirements provided in 2 CFR part 200.
II. Subpart B--State Fish and Wildlife Agency Eligibility
We are not proposing any substantive changes to subpart B.
III. Subpart C--License Revenue
We are not proposing any substantive changes to subpart C.
IV. Subpart D--Certifying License Holders
In our August 27, 2019, final rule (84 FR 44772), we made
significant changes to subpart D. Those regulatory changes included a
compliance date of September 27, 2021 (2 years from the effective date
of the 2019 final rule), for State fish and wildlife agencies to make
the needed changes in their laws and
[[Page 95593]]
processes to accommodate the new standards to licenses for the purposes
of certifying paid license holders during the annual certification
period. Certifying license holders is an important component to both
the Wildlife Restoration and the Sport Fish Restoration programs
because, under the Acts, annual apportionment to State fish and
wildlife agencies is based in part, under the mandatory funding
formulae in the Acts, on the number of paid hunting and fishing license
holders that the agency certifies.
We propose to make some editorial changes to subpart D to change
the title to reflect active voice, place more emphasis on ``individual
paid license holders,'' and improve clarity and consistency in how we
present information. At Sec. 80.33, How does a State fish and wildlife
agency decide who to count as paid license holders in the annual
certification?, we propose to address some misunderstandings that have
come to our attention as to how different types of licenses allow
license holders to be counted in the annual certification. State fish
and wildlife agencies develop many varying structures for how they
package and sell hunting and fishing licenses in their State.
As an example of the disparities and how we address them, consider
these two scenarios. State A and State B both have ``fiscal/license
years'' that are June 1-May 31. This is the ``certification period''
for both States when reporting individual paid license holders.
However, State A and State B follow different processes for issuing
licenses:
<bullet> State A sells annual licenses that, regardless of when you
purchase your license, are valid only during the ``fiscal/license
year.'' For example, if you purchase your license on April 1, it will
expire May 31 if you are buying that license for the current license
year, or it will not be valid until June 1 if you are buying that
license for the next license year.
<bullet> State B sells annual licenses that, regardless of when you
purchase your license, are valid for a full year starting with the day
you purchase the license and ending 1 year later (this type of license
is also known as a ``365-day license''). For example, if you purchase
your license on April 1, it is good from that day (April 1) through the
following March 31.
State A can easily determine which individual paid license holders
may be counted during the certification period as they all fall into
the fiscal/license year. However, State B has individual paid license
holders that are holding a valid license in two different fiscal/
license years. It would not be fair if State B certified license
holders in two certification periods for licenses that are essentially
the same in both States.
To align these scenarios, we propose to clearly state the
following:
<bullet> An individual paid license holder may be counted only in
the certification period in which the license first becomes valid.
<bullet> A single-year license may be valid for any period from 1
day up to 2 years.
<bullet> A license that is valid for 2 years or more is considered
a multiyear license.
<bullet> A license holder cannot be counted in more certification
periods than a license is valid, i.e., if holding a 5-year license, the
holder can be counted only in five certification periods for that
license.
<bullet> A license holder may be counted only for certification
periods that align with the years the license is valid, i.e., if a 5-
year license is valid from June 1, 2018, through May 31, 2023, the
license holder may not be counted for that license for the
certification period that ends between October 1, 2024, and September
30, 2025, or any certification period after that.
The criterion above becomes important when considering multiyear
licenses that were sold before the 2019 final rule became effective on
September 26, 2019, and a State fish and wildlife agency is
recalculating to determine if it may certify the license holder in an
upcoming certification period. For example, a 10-year license that was
sold in 2016 for $100 could be counted only once under the regulations
in effect at that time. Under the 2019 final rule, the State fish and
wildlife agency may apply the current standards in Sec. 80.34 to that
license and count the license holder in the certification periods that
include 2019 until the license expires in 2025, so that license holder
may potentially be counted in seven additional certification periods.
The State agency cannot certify that license holder beyond that date,
for that license, as it is no longer valid. Using the same example,
except for a lifetime license, under the 2019 final rule, the State
agency may certify the license holder for up to an additional 49 years,
provided the license holder is still alive.
Under this proposal, a State would be allowed to certify a license
holder only for the number of years that the license is valid and only
in the certification years that correspond to the period that the
license is valid.
At Sec. 80.34, Must a State fish and wildlife agency receive a
minimum amount of revenue for each license holder certified?, we
propose to remove the statement that all States must be following the
requirements in Sec. 80.34(b) by September 27, 2021, as that date is
now in the past. The subpart includes other references to that date,
and we propose revisions to update the regulations appropriately.
We propose to amend Sec. 80.35, What additional requirements apply
to multiyear licenses?, based on comments we have received since the
2019 final rule that certain language set forth by the 2019 final rule
is unclear or confusing. We propose no changes to the basic principles
established in Sec. 80.35 by the 2019 final rule; rather we propose
revisions similar to those we are proposing for Sec. 80.34 in removing
language identifying dates for regulatory compliance that are no longer
relevant. We also propose revisions for simplicity and clarity, to
encourage consistent understanding and implementation of the
regulations.
At Sec. 80.37, which pertains to the question of whether the State
fish and wildlife agency can certify a license sold at a discount, we
propose to remove the phrase ``when combined with another license or
privilege,'' as the answer to the question does not depend on combining
the license with another privilege. It can be discounted under other
circumstances. We also propose to amend the heading of Sec. 80.38,
which asks whether an entity other than the State fish and wildlife
agency may offer a discounted or free license under any circumstances,
to instead ask whether a State fish and wildlife agency can certify a
license when an entity other than the agency offers a discounted or
free license. The emphasis would be placed on the ability to certify
the license holder, which ultimately is the concept that we want to
establish throughout the regulations in subpart D.
Proposed amendments to the regulations in subpart D were presented
to the JTF in December 2021 for review and input. Prior to the 2019
final rule, the Service relied on the advice of the JTF to inform the
new standards for certifying license holders with the goal of
establishing rules that were fair and could be consistently applied by
State fish and wildlife agencies. The JTF again had the opportunity to
review proposed subpart D regulations during one of the preliminary
review and comment periods on the proposed rule.
V. Subpart E--Eligible Activities
We propose to amend subpart E by editing the regulations for active
voice, clarity, and better readability. We propose to strategically
amend the regulations in subpart E more than those in any other subpart
in 50 CFR part 80 to accommodate activities newly
[[Page 95594]]
eligible under the 2019 amendments to the Wildlife Restoration Act. The
WSFR pre-rulemaking policy process and preliminary guidance developed
to address the amendments to the Act greatly informed the proposed
changes to this subpart.
We describe here several areas of focus that greatly expand
eligible activities set forth in subpart E, how we are proposing to
reformat the regulations in this subpart, the analyses we engaged in to
determine how to improve the current regulations, and how we support
certain concepts throughout this proposed rule.
Background Information on the Wildlife Restoration Act
To better understand amendments to the Wildlife Restoration Act for
programs and subprograms, additional eligible activities, and how all
eligible activities under the Act intersect with funding sources under
the Act and the Service's administration of awards, we provide some
background on the Wildlife Restoration Act.
The Federal Aid in Wildlife Restoration Act (Sept. 2, 1937, ch.
899, section 1, 50 Stat. 917) set forth a program that apportioned
funds to State fish and wildlife agencies for eligible activities
related to acquiring land, improving habitat, and conducting research
associated with wildlife restoration and management. Funding was
available from revenue accrued during the Federal fiscal year (FFY) on
taxes imposed on firearms, shells, and cartridges under the Revenue Act
of 1932 (47 Stat. 169) and deposited into ``the Federal aid to wildlife
restoration fund,'' which we now refer to as the Wildlife Restoration
Trust Fund.
Each of the Act's programs and subprograms has specific eligible
activities, and costs must be assigned to separate fiscal subaccounts
to support accurate administration of the funds. The Service tracks
apportionments and available funding using the Department of the
Interior's Financial and Business Management System (FBMS), which
supports business management processes related to financial management,
grants and cooperative agreements, real and personal property
management, and several other functions. FBMS employs the use of
subaccounts, which allows the Service to use a ``first-in, first-out''
method of accounting.
The Service also uses subaccounts to administer the specific use
requirements for program and subprogram funding sources under the Act.
States that have funding that has not been obligated to an award within
the period of availability may encounter the possibility of having to
return apportioned funds to the Service (see table 1 to Sec. 80.92
under Proposed Regulation Promulgation, below, for information on how
the Service disburses returned funds). The Service uses a ``safety
margin'' system to track apportioned funds, obligated funds, and
periods of availability and will alert a State agency if the agency is
approaching a situation where they may need to return funds. (Note: the
formulas for awarding funds and cost share requirements for insular
areas, the Commonwealth of Puerto Rico, and the District of Columbia
vary from the formula applied to the 50 States.)
Since enactment of the Wildlife Restoration Act, several amendments
have revised the original eligibilities that impact changes addressed
in this proposed rule:
<bullet> The addition of maintenance of wildlife restoration
projects as eligible (Pub. L. 79-533, July 24, 1946).
<bullet> Law enforcement and public relations excluded as eligible
activities (Pub. L. 84-375, August 12, 1955).
<bullet> The addition of the Basic Hunter Education and Safety
subprogram to the Act (Pub. L. 91-503, October 23, 1970).
<bullet> The addition of the Enhanced Hunter Education and Safety
program to the Act (Pub. L. 106-408, November 1, 2000; also known as
``the Improvement Act'').
<bullet> The addition of an administrative funding advantage to
encourage and assist States in acquiring land for, expanding, and
constructing public target ranges, under the Target Practice and
Marksmanship Training Support Act (Pub. L. 116-17, May 10, 2019), which
we refer to as ``90/10/5.''
<bullet> The addition of new eligible activities for hunter
recruitment and recreational shooter recruitment (which we refer to as
``R3'') under the Modernizing the Pittman-Robertson Fund for Tomorrow's
Needs Act (Pub. L. 116-94, December 20, 2019), which also removed the
exclusion of public relations activities that was added to the Act in
1955.
Section 80.50--What activities are eligible for funding under the
Wildlife Restoration Act?
Updated Terms and Arrangement
As noted above, we propose to begin using the term ``Traditional
Wildlife Restoration program'' to refer to the original program that is
funded under 16 U.S.C. 669c(b) and ``90/10/5'' to refer to activities
for acquiring land for, expanding, or constructing public target ranges
that qualify for the administrative advantage of a 90 percent Federal/
10 percent non-Federal cost share, with a period of availability to
obligate funds of 5 years.
We propose to reorganize the regulations at Sec. 80.50(b) under
the general categories of Basic Hunter Education and Safety subprogram
and Hunter Recruitment and Recreational Shooter Recruitment, and
separate eligible activities for the Basic Hunter Education and Safety
subprogram into Sec. 80.50(b)(1) and eligible activities for
recruiting, retaining, or reactivating hunters and recreational
shooters (R3) into a new Sec. 80.50(b)(2). This proposed revision
would allow us to recognize the common funding source, while providing
the distinctions between eligible activities under each. We also
propose to remove regulations that describe activities that are
eligible under all programs under the Acts from current Sec. 80.50 and
add them to proposed Sec. 80.52.
Traditional Wildlife Restoration Program
We propose that eligible research may include social sciences, to
assist States in improving communication and benefits to the public
they serve. We also propose that a State may use funds under a
Traditional Wildlife Restoration program award for maintaining and
operating projects or equipment under the ownership or management
control of the State fish and wildlife agency and that support eligible
activities under the Wildlife Restoration Act. This proposed change is
intended to support the ability for State agencies to use Traditional
Wildlife Restoration program funds for eligible maintenance and
operations on projects or activities on Traditional Wildlife
Restoration-managed land that may have been funded in accordance with
regulations in another subpart or from an external source. As an
example, a wildlife management area has a public target range.
Maintenance activities such as mowing the lawn or operations such as
providing lighting to the facility would be eligible activities using
Traditional Wildlife Restoration program funds, as they are eligible
Traditional Wildlife Restoration program activities, without the need
to allocate costs to other funding sources. However, activities such as
constructing a public target range or providing staff to run and
operate the public target range would not be eligible Traditional
Wildlife Restoration program activities and must be charged to an
eligible funding source.
We also propose to add to Sec. 80.50 that a State agency may use
funds under a Traditional Wildlife Restoration
[[Page 95595]]
program award for maintaining and operating projects or equipment that
a third party owns or manages provided a third-party binding agreement
is in place that ensures the project continues to serve the intended
purposes under the award. This third-party binding agreement may be in
the form of a subaward.
Communication and Public Relations
With the passage of Public Law 116-94, the prohibition for funding
public relations activities was removed from the Wildlife Restoration
Act, making public relations potentially an eligible activity. The
regulations at 2 CFR part 200 specifically define public relations and
provide principles establishing when these costs are and are not
allowable. We have considered that perhaps the overlap of public
relations with other communication terms (such as ``outreach,''
``marketing,'' and ``advertising'') would cause confusion and
inconsistencies in determining which associated activities may be
funded under the Acts. Using preliminary guidance that we already have
developed (``Implementing the Modernizing the Pittman-Robertson Fund
for Tomorrow's Needs Act,'' July 14, 2021), in this proposed rule we
focus on public relations and other activities that would be considered
eligible for communicating with the public.
We propose to define the term ``public relations'' by referencing 2
CFR part 200; therefore, ``public relations'' would mean activities
that are dedicated to maintaining the image of the State fish and
wildlife agency or subrecipient or to maintaining or promoting
understanding and favorable relations with the community or public at
large or any segment of the public. As ``public relations'' activities
are described in 2 CFR part 200, costs for the activities are
unallowable unless meeting the objectives of, or necessary for the
performance of, a Federal award, or when conducting general liaison on
matters of public concern. To clarify, if the form of communication
solely benefits the State or the State agency, then the costs are
unallowable, but if the form of communication supports the objectives
or performance of the Federal award then costs would likely be
allowable. We propose to include at Sec. 80.50(a)(8) examples of
eligible communication types that support a State's ability to have an
informed and engaged public. We would describe at proposed Sec.
80.50(a)(9) what communication activities require prior approval.
Some of the eligible communication activities we describe in this
proposed rule are prompted by our engagement in the newly introduced
activities associated with R3, but we do not limit the opportunity to
expand on eligible communication activities to strictly R3. We propose
amendments throughout the regulations that clarify and allow for
expanded communication activities that support other eligible
activities.
Law Enforcement and Eligible Activities
We propose to begin foundationally at Sec. 80.2, as described
above, by defining the term ``law enforcement'' to mean enforcing laws,
orders, and regulations. We also would describe at proposed Sec. 80.55
how activities for both law enforcement and the process of making State
laws are ineligible for funding. Using these two standards of
ineligible activities under the Acts allows us to take an approach with
this proposed rulemaking to clarify and more distinctly define those
activities that are eligible, as the prohibition of activities
connected to law enforcement has been interpreted over the years to
extend beyond these restrictions. Based on this approach, we propose to
include the following activities in the regulation as eligible:
<bullet> Research, data collection, surveys, meeting with boards,
and other preliminary activities that State agency staff do to collect
information, make assessments, develop internal recommendations, and
inform legislators, who then use the information when engaging in the
ineligible activity associated with a formal legislative process for
making public policy. These eligible activities are also supported
under both Acts. When defining ``wildlife restoration project'' and
``fish restoration and management project,'' the Acts include,
respectively, ``research into problems of wildlife management as may be
necessary to efficient administration affecting wildlife resources''
(16 U.S.C. 669a(11)) and ``acquisition of such facts as are necessary
to guide and direct the regulation of fishing by law'' (16 U.S.C.
777a(1)(B)).
<bullet> Activities that are otherwise eligible being conducted by
law enforcement personnel. Examples are activities such as
participating in hunter education and safety courses, supporting public
access at boat ramps, or conducting outreach to educate the public or
for R3 purposes. If an activity is eligible, the staff involved with
conducting the activity, even if law enforcement, may be included as an
eligible part of an award. Of course, if law enforcement staff are
involved in an eligible activity, and something occurs that activates
them to conduct law enforcement activities, the State or subrecipient
would have to prorate costs accordingly and charge only eligible
activities to the award or subaward.
<bullet> Interpreting, translating, printing, or disseminating
published State hunting regulations to inform and educate the public
about their responsibilities to comply with laws, orders, and
regulations. Once the laws are published in the official legal registry
(State Register or other), the lawmaking process is complete. However,
the State agency should then make this information readily available to
members of the public in a manner they can understand. Such efforts to
simplify the rules in a different format, translate the law into other
languages, include information on the laws in hunter or angler guides,
and other associated projects would be eligible.
Technology
Considering that State agencies may provide many forms of
innovation in communication with the public, such as phone applications
(apps), social media, websites, software products, and whatever is on
the horizon, we propose to add the flexibility for States to employ
these methods and tools when associated with an eligible activity.
R3 Flexibility
We understand that the ability to use funds under these Acts for R3
activities will provide State fish and wildlife agencies opportunities
to be somewhat creative in finding various ways to approach different
audiences, thereby helping the agencies achieve the R3 success they are
seeking. We want to provide flexibility in the regulations for States
to take advantage of those opportunities as much as possible, while
still meeting the requirements for being necessary and reasonable and
supporting objectives in an award. We, therefore, propose to list
eligible activities that support R3 for items such as hiring shooting
trainers and hunting guides, paying for optimizing State websites,
acquiring supplies that help enhance the experience and skills of
participants, and various types of education to include mentoring,
field demonstrations, and training simulators. Many of the activities
for R3 under Wildlife Restoration can be applied similarly to R3 under
Sport Fish Restoration. We propose to leave sufficient flexibility to
allow a State agency to have an award approved for activities that the
agency can clearly demonstrate are targeted toward eligible R3
objectives.
[[Page 95596]]
Section 80.51--What activities are eligible for funding under the Sport
Fish Restoration Act?
We propose to amend eligible activities in Sec. 80.51 to align
with those in the proposed revised Sec. 80.50, as appropriate,
including expansion of eligible activities for communication.
Recreational Boating Access Subprogram
We propose to add some activities to provide more context, based on
the Service Manual chapter at 517 FW 7. Based on recommendations from
States, we would clarify that projects may be for motorized or
nonmotorized vessels and users.
State Outreach and Communications Subprogram
We propose to add the word ``State'' to this subprogram. The Act
provides for a National Outreach and Communications Program, which is a
competitive program administered out of the Service's Headquarters
Office. The Act also provides for a State Outreach and Communications
program (an R3 program), which is to be an extension of the National
program focused on State priorities. Each State may use up to 15
percent of its Sport Fish Restoration program apportioned funds (16
U.S.C. 777c) for the costs of the combined Aquatic Resources Education
and State Outreach and Communications subprograms. We propose to add a
provision for ``Interpreting, translating, printing, or disseminating
published State fishing regulations to inform and educate the public
about their responsibilities to comply with laws, orders, and
regulations'' to the regulations to provide parity with eligible
activities under proposed revised Sec. 80.50.
Section 80.52--What activities are eligible for funding under all
programs and subprograms under the Acts?
We propose to add this new section to the regulations as we
identified multiple activities currently discussed in Sec. Sec. 80.50
and 80.51 and in this proposed rule that are eligible to all programs
and subprograms. Below we describe two new proposed provisions to
accommodate activities newly eligible under the 2019 amendments to the
Wildlife Restoration Act.
State Electronic Data Systems
License sales are an important component of the congressionally
mandated funding formula the Service uses for awarding annual
apportionments to State agencies. Originally a manual process, tracking
of license sales became automated as technology improved and State
agencies began using automated point of sale or electronic licensing
systems for collecting payments for hunting and fishing licenses and
accounting for license sales. As the primary purpose for these
electronic systems was management of hunting and fishing license
revenue for the State fish and wildlife agency, using grant funds to
support the system was considered ineligible for funding as activities
conducted for the primary purpose of producing income (see 50 CFR
80.54(c)), and all associated costs, are ineligible. As technology has
further improved and agency activities expanded over the years,
traditional licensing systems evolved to accommodate a variety of needs
and purposes and have been combined with other public-facing electronic
systems designed to collect and share data and information as a public
interface. A Director's Memorandum issued on July 11, 1996 (Automated
Sportsman's Data Systems (ASDS)--Formerly Point of Sale), describes the
Service's awareness of the changing technology and the potential
eligibility of some costs associated with the expanding system. More
than 25 years later, systems have become a tool for a variety of
actions related to the conservation of fish and wildlife resources and
associated administration of a State agency. Some electronic systems
may be combined within a State to accommodate multiple purposes or be
used in conjunction with other State agencies. States are using
technology to increase efficiency and generate cost savings, so it is
possible that the electronic system that sells hunting and fishing
licenses may include components for collecting data and funds,
distributing information, or administering activities for other
purposes such as driver's licenses, vehicle registrations, park entry
permits, and other sources of revenue for States.
In June 2021, WSFR published guidance that describes how States may
apply costs of an electronic system that support eligible activities to
a Wildlife Restoration or Sport Fish Restoration award. As we have had
2 years to implement and receive feedback on this guidance and have
received no negative responses from States, we propose to add such
costs to the list of eligible activities in the regulations. The
processes in the guidance would still have to be followed for costs to
be eligible.
Oversight Activities
We propose to add provisions to the regulations that clarify as
eligible those activities pertaining to oversight, such as monitoring,
evaluating, and reporting. We would include as eligible the costs
associated with monitoring and compliance activities when they lead to
the discovery of an area of noncompliance with an award, a potential
diversion of funds under the Acts, or a situation where property
acquired under the Acts is infringed upon--improprieties that could
result in an action in the legal system. This proposed regulatory
change would continue to build on the flexibilities for activities that
do not fall into the category of law enforcement or State lawmaking.
The State agency would still be unable to use award funds for
conducting law enforcement activities, such as issuing a citation, but
the agency could use award funds for obtaining evidence, testifying in
court, meeting with attorneys, and other activities to protect resource
and property interests under an award. Here is an example: While a
State is monitoring real property holdings that were acquired under an
award, the State finds that an adjacent landowner has put a shed on a
State-owned property. Eligible activities would include the work that
non-law enforcement staff do to collect information and evidence (i.e.,
take photographs, check lot lines in the files, etc.), notify managers
and officials, write letters to the other party informing them of the
situation and offering an opportunity to correct, consult with
attorneys to assess the situation and potential alternatives, and, if
needed, testify and provide evidence in a court of law.
Section 80.53--May an activity be eligible for funding if it is not
explicitly eligible in this part?
We propose to add in Sec. 80.53 that an activity must be allowable
under 2 CFR part 200 to be eligible if the activity is not explicitly
described as eligible in the regulations in part 80.
Section 80.55--What activities are ineligible for funding?
We propose to expand on the prohibition for law enforcement to
include the definition of ``law enforcement'' but also the making of
laws. We also propose to remove ``public relations'' as ineligible
under the Acts in response to Public Law 116-94.
State Lawmaking as Ineligible
We propose to clearly describe as an ineligible activity
participation in the State lawmaking process using Federal funds under
an award. This provision is primarily because State agencies need to
[[Page 95597]]
retain their State law authority to make policy decisions, and once
these activities are included in a grant and paid for with Federal
financial assistance funds, they are ``federalized,'' creating a
Federal nexus to what is inherently a State responsibility. When a
federally funded project includes the making of State laws, a Federal
compliance review is automatically triggered. Even if the project is
determined to be categorically excluded from some Federal compliance
requirements, the Federal nexus on a State's responsibility and
authority to promulgate laws is inappropriate and is deemed ineligible.
Therefore, this proposed rule would clarify and more distinctly define
what law-related activities are eligible and ineligible under the Acts.
Public Access Denied
We also propose to add that when public access is required under an
award and is not provided, the project becomes ineligible for funding.
This provision does not include temporary closings or closings because
of reasons established at proposed Sec. 80.58 but refers to blatant
exclusion or denial of public access when that access is required under
an award.
Section 80.57--How does a proposed project qualify as substantial in
character and design?
We propose to add to Sec. 80.57 planned approaches, appropriate
procedures, and accepted principles that would relate to R3, access,
and communication to accommodate additional eligible activities
described in this proposed rule.
Section 80.58--What are public access requirements for activities in an
approved award under the Wildlife Restoration or Sport Fish Restoration
programs?
The parameters for public access have been a longstanding issue for
the Service and States, and we propose to set some basic principles in
the regulations to assist with understanding and encourage consistent
application. We propose to start with stating that there are certain
eligible activities under an award for which the primary purpose is to
provide public access. A prime example of such an activity is public
target ranges, which are prominent in both Public Law 116-17, which
focuses on offering advantages to States to encourage further
development of such facilities, and Public Law 116-94, which seeks to
provide public target ranges and other support to recruit, retain, or
reactivate members of the public in hunting and recreational shooting
activities. We have encountered situations where potential
subrecipients were actively seeking to partner with States in using
funds under the Wildlife Restoration Act for range projects but did not
want the range open to the public. Often, we encounter situations where
the desire is to limit access to members only, and membership costs are
very high, or memberships are not offered to all. This includes
projects under both Acts.
From the public side, we also have encountered situations where
certain groups with specific interests want to access property acquired
under an award for various purposes that are not consistent with the
purposes of the award under which they were acquired. For example, a
real property acquisition for the purposes of conserving a sensitive
species in recovery may not be compatible with all-terrain vehicle use
or horseback riding on that property. Proposed Sec. 80.58 would give
the State agency authority, within the purposes of the Acts, to set
parameters for public access. We understand that many States have
standards for public access already institutionalized in their laws and
practices. Proposed Sec. 80.58 would also describe how a State agency
may work under a third-party binding agreement (which may be
accomplished as a subaward) to partner with non-State entities on
projects that must provide public access.
We purposely do not discuss in the proposed regulations any set
formulas for determining the amount of public access to provide when
the project with a third party is not available for public access 100
percent of the time. In May 2017, the Service published Best Practices
for Third-Party Agreements guidance (best practices guidance), which we
updated in September 2019. In the best practices guidance, we describe
that the determination as to the adequacy of public access will be
accomplished on a case-by-case basis and will be considered as follows:
The WSFR-prescribed method used to determine the amount of public
access is:
(1) A reasonable number of regularly scheduled and posted hours of
availability must be available to the public that reflects, at minimum,
the amount of the Federal and State investment;
(2) Hours of operation may take into consideration safety and
security issues, but must not impose impediments such as mandatory
membership or excessive fees beyond those needed to offset maintenance
and management costs;
(3) If there is potential for closing a site for targeted, non-
public use, the recipient must define a process whereby the third party
must notify the public of any changes in availability and must
compensate the recipient when it reduces the minimum public access
defined in the agreement (the preferred method is for the third party
to offer additional public access at an alternate time that compensates
for the interruption); and
(4) If there are gates, locks, or other controls to access, the
third party must clearly indicate at the control point how the public
may gain access to the facility.
VI. Subpart F--Allocation of Funds by an Agency
With the passage of Public Law 116-17 and Public Law 116-94, many
more interrelationships are available for developing projects and
engaging in eligible activities that could potentially include using
funds from a different funding source under the Wildlife Restoration
Act. Because these statutory changes prompted a more holistic approach
in subpart F, we propose to expand current Sec. 80.60 and add three
new sections as follows:
<bullet> Proposed Sec. 80.60--What is the relationship between the
Traditional Wildlife Restoration Program, the Basic Hunter Education
and Safety subprogram (Basic Hunter Education), and the Enhanced Hunter
Education and Safety program (Enhanced Hunter Education) for acquiring
land for, expanding, or constructing public target ranges?
<bullet> Proposed Sec. 80.61--What sources of funding in the
Wildlife Restoration Act may a State fish and wildlife agency use to
support public target range projects, and may funds from multiple
sources be used in a single award?
<bullet> Proposed Sec. 80.62--What are eligible and ineligible 90/
10/5 activities?
<bullet> Proposed Sec. 80.63--What exception is provided for
Enhanced Hunter Education and Safety funds in relation to Basic Hunter
Education and Safety funds?
We propose in these sections, based on the ``Interim Guidance for
Applying Public Law 116-17, the Target Practice and Marksmanship
Training Support Act, to the Pittman-Robertson Wildlife Restoration
Act'' (interim guidance), how a State may apply the 90 percent Federal/
10 percent non-Federal cost share and period of availability of up to 5
years to eligible public target range projects. The proposed sections
also describe what amount of funds, if any, a State may allocate to
public target range projects and the process a State
[[Page 95598]]
agency must take when applying apportioned Traditional Wildlife
Restoration program funds to those projects. The current regulations at
Sec. 80.60 focus on the differences between the Basic Hunter Education
and Safety subprogram and the Enhanced Hunter Education and Safety
program. We propose to address the relationship between the two
programs and one subprogram that may include public target range
activities using the 90/10/5 approach as allowable under the amendments
from Public Law 116-17.
Proposed Sec. 80.61 would engage with all the options that a State
may use when funding public target range projects. We would identify,
in a table to proposed Sec. 80.61, seven different potential
approaches to use under the regulations.
Proposed Sec. 80.62 would describe eligible and ineligible 90/10/5
activities. The proposed revisions would include a topic that we need
to address as, following a legal review of Public Law 116-17, it became
clear that the intent of the law is to increase physical access to more
or expanded public target ranges. In the interim guidance and this
proposed rule, we make it clear that ``expanding'' means, for the
purposes of projects for acquiring land for, expanding, or constructing
public target ranges (90/10/5), physical improvements to an existing
public target range that add to the utility of the range in a manner
that ultimately increases range capacity to accommodate more
participants. Physical improvements do not necessarily have to increase
the size of the facility but must result in an increase in physical
usability that will accommodate more participants. This legal
interpretation led us to include in this proposed rule definitions for
the terms ``maintenance'' and ``operations.''
In the grant programs under the Acts, we tend to combine operations
and maintenance under single awards, and this approach is acceptable
for most of the eligible activities under the Acts. However, for 90/10/
5 awards, an activity defined as ``operations'' is not an eligible
activity. An activity defined as ``maintenance'' may be, depending on
whether it integrally supports a construction or expansion project. For
example, if a project includes activities to expand a 6-stall range to
a 12-stall range, but the roof and structure of the existing 6 lanes
need repair and maintenance at the same time to allow for successful
construction, it may be necessary and reasonable to support the
expansion project and ensure that all 12 lanes will be accessible to
the public. Other examples may include when a safety feature of a
public target range needs maintenance, and closure of the facility will
occur if the need is not resolved. When combined with other activities
for expanding the range, this maintenance activity may be included as
necessary and reasonable. A State fish and wildlife agency would have
to clearly justify how the maintenance activity supports the 90/10/5
objectives and is not just a stand-alone maintenance activity that does
nothing to increase range capacity for more participants.
We include in this proposed rule that public target ranges may be
on property where title is held by a third party provided the State
agency holds a lease or other binding agreement that ensures the terms
and conditions of the award will be met. Mobile public target ranges
would also be eligible. Although personnel and administrative costs for
managing and operating a public target range once the project is
completed would be ineligible, personnel and administrative costs
associated with activities that directly support development of public
target ranges, such as acquiring land and construction, would be
eligible. Examples include those activities associated with planning
for projects, which may include identifying potential parcels of land,
investigating and obtaining permits, conducting real property
appraisals, engineering, coordinating projects on a State level, and
administering specific projects. Costs that are also eligible when
combined with an expansion or construction project are the associated
amenities that are necessary and reasonable to ensure the public can
fully access and utilize the public target range, such as public
restrooms, storage facilities, safety amenities, signs, roads and
parking lots, and infrastructure for utilities. We also propose to
include as eligible the possibility to justify a project using the 90/
10/5 approach when the range has deteriorated to a condition where it
is no longer operable or accessible. We do not expect this situation to
happen often, and anyone considering this option would have to consult
the regional WSFR office.
We would list the following activities as ineligible: operations,
maintenance unless necessary for completing a construction or expansion
project, long-term monitoring, and any other activities that are not
directly related to the goals of 90/10/5 for providing new or increased
physical capacity for public target ranges.
Proposed Sec. 80.63 would describe the exception that is in the
Wildlife Restoration Act (16 U.S.C. 669 et seq.) for use of Enhanced
Hunter Education and Safety funds. The amendments to the Act from
Public Law 116-94 complicate administration in some respects. The
funding source for both the Basic Hunter Education and Safety
subprogram and the newly added hunter recruitment and recreational
shooter recruitment (which we refer to as ``R3'') activities is
described in the Act at 16 U.S.C. 669c(c)(1)-(3). When applied to the
Basic Hunter Education and Safety subprogram, the eligible activities
are described in the Act at 16 U.S.C. 669g(b). The new eligible
activities for R3 are included in the Act under 16 U.S.C. 669c(c)(4).
The Act also includes an exception for the Enhanced Hunter Education
and Safety program that, if a State uses all its Basic Hunter Education
and Safety subprogram funds for purposes under 16 U.S.C. 669g(b) during
the FFY, the State may then use its Enhanced Hunter Education and
Safety program funds for any purpose under the Act. When applying the
amendments for R3 activities in the Act, if a State uses any of its
funds under 16 U.S.C. 669c(c) for R3 activities, it voids the
exception, and the State must use all its Enhanced Hunter Education and
Safety program funds for Enhanced Hunter Education and Safety program
purposes. We propose to revise Sec. 80.63 to explain and clarify the
exception and associated restrictions when using those funds for R3
activities.
Section 80.64--What requirements apply to funds for the Recreational
Boating Access subprogram?
We propose to update Sec. 80.64 to clarify that a State need not
set aside funds out of each annual apportionment for this subprogram,
provided that the standard is accomplished within the designated 5-year
period. We propose to update the 5-year periods starting with 2023.
Section 80.66--Must a State fish and wildlife agency allocate costs in
multipurpose projects and facilities? And section 80.67--How does a
State fish and wildlife agency allocate costs to an award in
multipurpose projects and facilities?
We propose to amend Sec. Sec. 80.66 and 80.67 slightly to
accommodate for various funding sources within the Acts and to support
that a State agency may describe ineligible activities in a proposal
that supports eligible activities provided that the proposal clearly
shows that no costs for ineligible activities are part of the award.
The Service has had a few instances in which auditors have identified
any discussion of ineligible activities in a proposal as making the
award ineligible.
[[Page 95599]]
This determination is inaccurate. In many multipurpose projects,
eligible and ineligible activities work together for the success of the
overall project, and describing the ineligible activities makes it
clearer to the grant reviewer how the entire project is supported.
Therefore, this is an acceptable approach that supports the information
required at Sec. 80.82(b).
Section 80.69--What requirements apply to allocation of funds between
marine and freshwater fisheries projects?
We propose to amend Sec. 80.69 to remove the term ``obligated''
and replace it with the term ``allocated'' to better align with current
administrative practices.
VII. Subpart G--Applying for an Award
We propose to amend the title of subpart G to reflect active voice
and to replace the term ``grant'' with ``award'' to align with 2 CFR
part 200.
The Service has had several changes to systems and processes for
States applying for an award and for Service staff administering
awards. In response to these changed circumstances, we propose to
revise subpart G to become more generic in some places, not referencing
specific systems and processes and referring applicants to the notice
of funding opportunity for specific information. As many actions that
used to require hardcopy submissions and signatures are now
accomplished electronically, we also propose changes to reflect modern
procedures. Effective January 1, 2020, <a href="http://SAM.gov">SAM.gov</a> (<a href="https://sam.gov/content/home">https://sam.gov/content/home</a>) became the central repository for common certifications
and representations required of Federal grants recipients. Effective
October 28, 2022, the Service no longer requires applicants to submit
the ``Assurances for Non-Construction Programs (SF-424B)'' form or the
``Assurances for Construction Programs (SF-424D)'' form with their
applications. Therefore, we propose to remove this requirement from the
regulations.
Section 80.83--What is the Federal share of allowable costs? And
section 80.84--How does the Service establish the non-Federal share of
allowable costs?
On October 22, 2022, the U.S. Department of the Interior issued a
notification (DOI-PGM-PAN Reference No: 2023-0022) that the Office of
the Solicitor has determined Public Law 96-205, title VI, section 601,
as amended, in conjunction with 48 U.S.C. 1469a(d), requires Department
of the Interior offices and bureaus to waive the cost sharing
requirement for grants to the U.S. Virgin Islands, Guam, American
Samoa, and the Commonwealth of the Northern Mariana Islands, commonly
called ``insular areas.'' Based on this determination, we propose to
amend these sections of the regulations to show that the Service will
not require those insular areas to provide cost share to awards under
these Acts. The insular areas may provide voluntary cost share, but it
is not required. The Commonwealth of Puerto Rico and the District of
Columbia must still provide a minimum 25 percent cost share.
We also propose to amend these sections to reflect that for those
activities that meet the criteria for acquiring land for, expanding, or
constructing public target ranges, the Federal share may be up to 90
percent of costs under an award, except for insular areas where it is
100 percent.
Section 80.85--What requirements apply to cost share or match?
We propose to revise Sec. 80.85 to refer only to the requirements
for cost share as described at 2 CFR 200.306. We would maintain the
text that describes at what level of accounting to apply cost share.
VIII. Subpart H--General Award Administration
Section 80.92--How long are funds available for a Federal obligation?
We propose to supplement Sec. 80.92 by providing a table that
describes all programs and subprograms under the Acts and shows the
name of the program or subprogram, the period of availability for
obligation (how many FFYs), and the disbursement of funds at the end of
the period of availability for obligation. This table would clearly
show all sources of funding and what happens to the funding should it
not be obligated within the period of availability.
Section 80.94--May a State fish and wildlife agency incur costs before
the beginning of the period of performance?
We propose to add a clause at the end of paragraph (c) of Sec.
80.94 that would state that the agency can receive reimbursement for
pre-award costs only after the beginning of the period of performance
and, for activities requiring compliance, only after the compliance is
satisfied. This proposed revision would emphasize that if a State
agency receives approval for pre-award costs that require compliance,
the compliance must be completed to the satisfaction of the Service
before reimbursement will be made. For activities that do not require
compliance, reimbursement may be accomplished as soon as practicable.
Section 80.97--What is barter, and may a State fish and wildlife agency
use barter of goods or services to carry out a grant-funded project?
And section 80.98--How must a State fish and wildlife agency include
barter in an award and report barter transactions?
The final rule published on August 1, 2011 (76 FR 46150),
introduced in the regulations how a State agency may use the barter of
goods and services to carry out a grant-funded project and how barter
must be reported. This revision was in response to audit findings
reported by the Office of the Inspector General in several States and
recommendations that the Service provide clear guidance. In January
2020, the JTF began a process where, annually, WSFR sends out a request
for State agencies to submit topics of national concern in the programs
under the Acts for our consideration and possible policy action. In
2021, we received a concern that barter transactions in a State had
again been identified as an audit finding. This situation prompted WSFR
to reexamine the topic and determine how States were managing barter
requirements. The JTF supported WSFR staff working with the Federal
Assistance Coordinators Working Subcommittee, a group of State
representatives and subject matter experts chartered under the
Association of Fish and Wildlife Agencies, to assist in reaching out to
States and to provide advice on regulatory changes.
Barter is an accounting activity that is addressed under the
Generally Accepted Accounting Principles (GAAP) and the associated
standards for State and local governments set by the Governmental
Accounting Standards Board (GASB). We determined that the current GASB
standard that includes barter transactions was published after
Sec. Sec. 80.97 and 80.98 were set forth in the proposed rule (75 FR
32877, June 10, 2010) for the August 1, 2011, rule (76 FR 46150), and
we were unaware of the change until consulting with our accounting
experts when reassessing the topic in 2021. Therefore, we propose to
amend those sections of the regulations to reflect current standards.
The proposed revised sections would assign the responsibility to each
individual State for developing and maintaining processes that follow
GAAP/GASB standards for how to manage barter transactions within that
State fish and wildlife agency. This proposed revision
[[Page 95600]]
is consistent with 2 CFR part 200, which requires States to establish
and follow their own processes under existing laws.
The definition for ``barter transactions'' would remain the same--
that it is an accounting term and means a nonmonetary exchange
(reciprocal transfer) transaction. The requirement to report barter
transactions in the Federal financial report also would remain. The
barter exchange needs to be accounted for according to the GAAP
standard. The GAAP standard for States is dictated by the GASB
Statement No. 62. In general, accounting for nonmonetary transactions
should be based on the fair values of the assets (or services)
involved, which is the same basis as that used in monetary
transactions. Therefore, barter could result in an even exchange when
the fair values of the assets exchanged are the same or result in a
gain or a loss when one part of the exchange has a higher value than
the other. A gain could be program income and a loss a project expense.
In the current regulations, the Service describes cooperative
farming and grazing, a very typical activity with State agencies that
is considered an even-exchange barter transaction. In this proposed
rule, we propose to remove cooperative farming and grazing from Sec.
80.98 not because it is no longer considered as an even-exchange barter
transfer but because, under the current GASB standard, each State, and
not the Service, is responsible for establishing processes for making
those determinations for their State and then following the resulting
processes. Therefore, any State desiring to include cooperative farming
and grazing as an even-barter exchange must include it in the State's
processes. A State could potentially add more parameters within GAAP/
GASB standards that could benefit the agency's approaches and
objectives. WSFR has been providing technical assistance to States
through the Federal Assistance Coordinators Working Subcommittee to
assist them in identifying any existing State policies on barter
transactions and establishing or refining barter policies for the State
fish and wildlife agency to use. By establishing State fish and
wildlife agency policies on barter transactions that meet the standards
established under GASB, and then following those policies, State
agencies may avoid future audit findings related to barter.
One concern related to barter transactions that was brought to our
attention is when a State agency wants to incentivize certain
activities to support its program objectives and offers something of
value to private entities in exchange for a desired action. We do not
address incentives in this rulemaking but did address them in a policy
advisory (Advisory 2020-016, October 15, 2020 (<a href="https://fawiki.fws.gov/pages/viewpage.action?pageId=117669889">https://fawiki.fws.gov/pages/viewpage.action?pageId=117669889</a>)) when the question was
presented to WSFR. We describe an ``incentive'' as something that
motivates or encourages someone to do a desired behavior or action,
that is, it stimulates a reaction or response. An incentive is not a
barter transaction unless it meets the criteria for barter. A State
agency offering incentives to prompt a desired reaction or response may
take many forms, many of which are not barter transactions. When the
incentive is more transactional and includes a nonmonetary exchange on
both ends, it is a barter transaction and must follow the State
processes and the regulations at 50 CFR part 80.
IX. Subpart I--Program Income
Section 80.120--What is program income?
We propose to update Sec. 80.120 to better align with 2 CFR part
200. To this section, we propose to add barter transactions as a form
of program income when the value of goods or services received exceeds
the value of goods or services the agency provided.
X. Subpart J--Real Property
We propose to revise the heading of Sec. 80.134 and make one
substantive change to subpart J. We would add a new paragraph (e) under
Sec. 80.134 stating that real property acquired with license revenue
(see Sec. 80.20(b)) must be controlled by the State fish and wildlife
agency and used only for administration of the agency (see Sec.
80.10(c)). Paragraphs (a) through (d) of Sec. 80.134 address how State
agencies must use real property acquired under an award. The proposed
addition of new paragraph (e) to this section would close the loop by
referring to Sec. 80.20(b), which includes real or personal property
acquired with license revenue as ``hunting and fishing license
revenue'' that must be protected, and then back to Sec. 80.10(c),
which requires that hunting and fishing license revenue be controlled
by the State fish and wildlife agency and used only for the
administration of that agency. We would impose no new requirements by
adding this new paragraph (e); rather, this proposed addition would
align the requirements in a meaningful way in the real property
subpart.
XI. Subpart K--Revisions and Appeals
We are not proposing any substantive changes to subpart K.
XII. Subpart L--Information Collection
We are proposing to update subpart L to the current standardized
paragraph for information collection.
Statutory Authority
The authorities for this action are 16 U.S.C. 669 et seq., and 777-
777m, except 777e-1 and g-1.
Request for Comments
You may submit comments and materials on this proposed rule by any
one of the methods listed in ADDRESSES. We will not accept comments
sent by email or fax or to an address not listed in ADDRESSES. We will
not consider hand-delivered comments that we do not receive, or mailed
comments that are not postmarked, by the date specified in DATES.
We will post your entire comment on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Before including personal identifying information in your comment, you
should be aware that we may make your entire comment--including your
personal identifying information--publicly available at any time. While
you can ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so. We will post all hardcopy comments on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866, 13563, and
14094)
Executive Order (E.O.) 12866, as reaffirmed by E.O. 13563 and E.O.
14094, provides that the Office of Information and Regulatory Affairs
(OIRA) in the Office of Management and Budget (OMB) will review all
significant rules. OIRA has determined that this proposed 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
[[Page 95601]]
public participation and an open exchange of ideas.
Executive Order 14094 reaffirms the principles of E.O. 12866 and
E.O. 13563 and states that regulatory analysis should facilitate agency
efforts to develop regulations that serve the public interest, advance
statutory objectives, and are consistent with E.O. 12866, E.O. 13563,
and the Presidential Memorandum of January 20, 2021 (Modernizing
Regulatory Review). Regulatory analysis, as practicable and
appropriate, shall recognize distributive impacts and equity, to the
extent permitted by law.
We have developed this proposed rule in a manner consistent with
these requirements.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency publishes a
proposed or final rule, it must prepare and make available for public
comment a regulatory flexibility analysis that describes the effects of
the rule on small entities (i.e., small businesses, small
organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of the agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. The SBREFA amended the RFA to
require Federal agencies to provide a certification statement of the
factual basis for certifying that the rule will not have a significant
economic impact on a substantial number of small entities.
We have examined this proposed rule's potential effects on small
entities as required by the RFA. We have determined that this proposed
rule would not have a significant economic effect on a substantial
number of small entities and does not require a regulatory flexibility
analysis because only eligible State, Territorial, and the District of
Columbia fish and wildlife agencies may receive funding under the Acts
and regulations. Therefore, small entities (small businesses, small
organizations, and small governmental jurisdictions) would not be
affected by this proposed rule.
In summary, we have considered whether this proposed rule would
result in a significant economic impact on a substantial number of
small entities. We certify that, if made final, this proposed rule will
not have a significant economic effect on a substantial number of small
entities as defined under the RFA, as amended. An initial regulatory
flexibility analysis is not required. Accordingly, a small entity
compliance guide is not required.
Unfunded Mandates Reform Act
This proposed rule would not impose an unfunded mandate on State,
local, or Tribal governments, or the private sector of more than $100
million per year. The proposed rule would not have a significant or
unique effect on State, local, or Tribal governments or the private
sector.
(a) As discussed above under Regulatory Flexibility Act, this
proposed rule would not have a significant economic effect on a
substantial number of small entities.
(b) The regulations do not require a small government agency plan
or any other requirement for expending local funds.
(c) The programs governed by the current regulations and enhanced
by the proposed amendments in this document potentially assist small
governments financially when they occasionally and voluntarily
participate as subrecipients of an eligible agency.
(d) The proposed 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 proposed rule other than a required cost share, in
some cases. No cost share is required under this proposed rule for
insular areas.
(f) The benefits of grant funding outweigh the costs. 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 proposed rule would not produce a Federal mandate of $100
million or greater in any year, i.e., it is not a ``significant
regulatory action'' under the Unfunded Mandates Reform Act.
A statement containing the information required by the Unfunded
Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.
Takings (E.O. 12630)
This proposed rule would not affect a taking of private property or
otherwise have taking implications under Executive Order 12630. This
proposed rule has no provision for taking private property. Any real
property acquisitions with private landowners are strictly voluntary
and only with willing sellers. A takings implication assessment is not
required.
Federalism (E.O. 13132)
Under the criteria in section 1 of Executive Order 13132, this
proposed rule does not have sufficient federalism implications to
warrant the preparation of a federalism summary impact statement. 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. A federalism summary impact
statement is not required.
Civil Justice Reform (E.O. 12988)
This proposed rule complies with the requirements of Executive
Order 12988. Specifically, this proposed rule:
(a) Meets the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate errors and ambiguity and be
written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all
regulations be written in clear language and contain clear legal
standards.
Consultation With Indian Tribes (E.O. 13175, Department Policy, and
U.S. Fish and Wildlife Service Native American Policy)
The Department of the Interior strives to strengthen its
government-to-government relationship with Indian Tribes through a
commitment to consultation with Indian Tribes and recognition of their
right to self-governance and Tribal sovereignty. We have evaluated this
proposed rule under the Department's consultation policy and under the
criteria in Executive Order 13175 and have determined that it would
have no substantial direct effects on federally recognized Indian
Tribes and that consultation under the Department's Tribal consultation
policy is not required. This proposed rule would inform States,
Territories, and the District of Columbia as the eligible recipients
under the Acts how to apply for funding, what activities are eligible
for funding, and other administrative requirements. Eligible entities
may partner with Indian Tribes on projects, but Indian Tribes are not
eligible to receive funds directly.
[[Page 95602]]
Paperwork Reduction Act (44 U.S.C. 3501 et seq.)
This proposed rule contains existing and new information
collections. All information collections require approval under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). We may not
conduct or sponsor and you are not required to respond to a collection
of information unless it displays a currently valid Office of
Management and Budget (OMB) control number. The OMB has reviewed and
approved the information collection requirements associated with the
administration of financial assistance through grants and cooperative
agreement awards to States, local governments, Indian Tribes,
institutions of higher education, nonprofit organizations, foreign
organizations, foreign public entities, for-profit entities, and
individuals and has assigned OMB Control Number 1018-0100,
Administrative Procedures for U.S. Fish and Wildlife Service Financial
Assistance Programs (expires 02/28/2025).
In accordance with the PRA and its implementing regulations at 5
CFR 1320.8(d)(1), we provide the general public and other Federal
agencies with an opportunity to comment on our proposal to revise OMB
Control Number 1018-0100. This input will help us assess the impact of
our information collection requirements and minimize the public's
reporting burden. It will also help the public understand our
information collection requirements and provide the requested data in
the desired format.
As part of our continuing effort to reduce paperwork and respondent
burdens, we invite the public and other Federal agencies to comment on
any aspect of this information collection, including:
(1) Whether or not the collection of information is necessary for
the proper performance of the functions of the agency, including
whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection
of information, including the validity of the methodology and
assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the
information to be collected; and
(4) Ways to minimize the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of response.
Comments that you submit in response to this proposed rulemaking
are a matter of public record. Before including your address, phone
number, email address, or other personal identifying information in
your comment, you should be aware that your entire comment--including
your personal identifying information--may be made publicly available
at any time. While you can ask us in your comment to withhold your
personal identifying information from public review, we cannot
guarantee that we will be able to do so.
The proposed revisions to existing and new reporting and/or
recordkeeping requirements identified below require approval by OMB:
(1) (NEW) Notice of Annual Apportionment Nonacceptance (50 CFR
80.12)--If a State fish and wildlife agency does not want to receive
the annual apportionment of funds, it must notify the Service in
writing within 60 days after receiving a preliminary certificate of
apportionment.
(2) (NEW) State Agency Hunting and Sport Fishing License
Certification Revision (50 CFR 80.39)--A State fish and wildlife agency
must submit revised certified data on license holders within 90 days
after it becomes aware of errors in its certified data. The State may
become ineligible to participate in the benefits of the relevant Act if
the State becomes aware of errors in its certified data and does not
resubmit accurate certified data within 90 days.
(3) (NEW) Voluntary Display of Program Symbols (50 CFR 80.100)--A
State fish and wildlife agency does not have to display one of the
symbols in Sec. 80.99 on a project completed under the Acts. However,
the Service encourages agencies to display the appropriate symbol as
follows:
a. An agency may display the appropriate symbol(s) on:
1. Areas such as wildlife-management areas, shooting ranges, and
sportfishing and boating-access facilities that were acquired,
developed, operated, or maintained with funds authorized by the Acts;
and
2. Printed or web-based material or other visual representations of
project accomplishments.
b. An agency may establish a requirement for similar standards for
displaying the appropriate symbol or symbols, in the places described
in paragraph (a) of this section, that is passed through to
subrecipients. An agency may require a subrecipient to display the
appropriate symbol or symbols in the places described in paragraph (a)
of this section.
c. The Director or Regional Director may authorize an agency to use
the symbols in a manner other than as described in paragraph (a) of
this section.
d. The Director or Regional Director may authorize other persons,
organizations, agencies, or governments to use the symbols for purposes
related to the Acts by entering into a written agreement with the user.
An applicant must state how it intends to use the symbol(s), to what it
will attach the symbol(s), and the relationship to the specific Act.
e. The user of the symbol(s) must indemnify and defend the United
States and hold it harmless from any claims, suits, losses, and damages
from:
1. Any allegedly unauthorized use of any patent, process, idea,
method, or device by the user in connection with its use of the
symbol(s), or any other alleged action of the user; and
2. Any claims, suits, losses, and damages arising from alleged
defects in the articles or services associated with the symbol(s).
f. The appearance of the symbol(s) on projects or products
indicates that the manufacturer of the product pays excise taxes in
support of the respective Act(s) and that the project was funded under
the respective Act(s) (26 U.S.C. 4161, 4162, 4181, 4182, 9503, and
9504). The Service and the Department of the Interior make no
representation or endorsement whatsoever by the display of the
symbol(s) as to the quality, utility, suitability, or safety of any
product, service, or project associated with the symbol(s).
g. No one may use any of the symbols in any other manner unless the
Director or Regional Director authorizes it. Unauthorized use of the
symbol(s) is a violation of 18 U.S.C. 701 and subjects the violator to
possible fines and imprisonment.
(4) (NEW) Required Display of CVA Program Symbol, Slogan, and
Information (50 CFR 85.43 and 85.47)--Facilities must display
appropriate information signs at pumpout and portable toilet dump
stations. Those signs should indicate fees, restrictions, hours of
operation, operating instructions, a contact name, and 1-800-ASK-FISH
telephone number for boaters to get additional information or to report
an inoperable facility. As the source of funding for Clean Vessel Act
facilities, the Sport Fish Restoration program should get credit
through use of the Sport Fish Restoration logo. Grant recipients may
use the crediting logo identified in 50 CFR 80.99 to identify projects
funded by the Clean Vessel Act.
[[Page 95603]]
(5) (REVISION) Adjust previously approved burden estimates as
follows:
<bullet> Reduce burden estimates due to the archival of the
following programs: 15.641 Wildlife Without Borders-Mexico, 15.633
Landowner Incentive, and 15.656 Recovery Act Funds. We propose to
reduce burden estimates based on the number of awards under these
programs that were pending closeout reports as of our previous
clearance.
<bullet> Increase burden estimates associated with new 15.069
Zoonotic Disease Initiative program. This new program was funded and
then defunded since our last renewal. We propose to increase burden
estimates for only post-award requirements (amendments and reporting)
for the 21 awards issued by the program before funding recission.
<bullet> Increase burden estimates for increased financial
assistance funding and activities resulting from Infrastructure
Investment and Jobs Act (BIL) appropriations supplementing 14 Service
financial assistance programs.
<bullet> Add the new 15.685 National Fish Passage and 15.686
National Fish Habitat Partnership programs, but we have not proposed a
corresponding increase in burden estimates. These longstanding programs
were previously managed and reported as subprograms under our 15.608
Fish and Wildlife Management Assistance program.
We also propose to renew the existing reporting and/or
recordkeeping requirements identified below:
(1) Application Package--We use the information provided in
applications to: (1) Determine eligibility under the authorizing
legislation and applicable program regulations; (2) determine
allowability of major cost items under the Cost Principles at 2 CFR
part 200; (3) select those projects that will provide the highest
return on the Federal investment; and (4) assist in compliance with
laws, as applicable, such as the National Environmental Policy Act, the
National Historic Preservation Act, and the Uniform Relocation
Assistance and Real Property Acquisition Policies Act of 1970. The full
application package (submitted by the applicant) generally includes the
following:
<bullet> Required Federal financial assistance application forms
(SF-424 suite of forms, as applicable to specified project).
<bullet> Project Narrative--generally includes items such as:
--Statement of need,
--Project goals and objectives,
--Methods used and timetable,
--Description of key personnel qualifications,
--Description of stakeholders or other relevant organizations/
individuals involved and level of involvement,
--Project monitoring and evaluation plan, and/or
--Other pertinent project-specific information.
<bullet> Pertinent project budget-related information--generally
includes items such as:
--Budget justification,
--Detail on costs requiring prior approval,
--Indirect cost statement,
--Federally funded equipment list, and/or
--Certifications and disclosures.
(2) Amendments--Recipients must provide written explanation and
submit prior approval requests for budget or project plan revisions,
due date extensions for required reports, or other changes to approved
award terms and conditions. The information provided by the recipient
is used by the Service to determine the eligibility and allowability of
activities and to comply with the requirements of 2 CFR part 200.
(3) Reporting Requirements--Reporting requirements associated with
financial assistance awards generally include the following types of
reports:
<bullet> Federal Financial Reports (using the required SF-425),
<bullet> Performance Reports, and
<bullet> Real Property Status Reports, when applicable (using the
required SF-429 forms series).
(4) Recordkeeping Requirements--In accordance with 2 CFR 200.334,
financial records, supporting documents, statistical records, and all
other non-Federal entity records pertinent to a Federal award must be
retained for a period of 3 years after the date of submission of the
final expenditure report or, for Federal awards that are renewed
quarterly or annually, from the date of the submission of the quarterly
or annual financial report, respectively, as reported to the Federal
awarding agency or pass-through entity (in the case of a subrecipient)
(unless an exemption as described in 2 CFR 200.334 applies that
requires retention of records longer than 3 years).
(5) Real Property Reporting/Recordkeeping Requirements--Service
recipients purchasing real property under their award in which the
Federal Government retains an interest must report on the status and
request approval to dispose of those per 2 CFR part 200 and 2 CFR part
1402 using the SF-429-A, Real Property Status Report (General
Reporting) and the SF-429-C, Real Property Status Report (Disposition
or Encumbrance Request), as appropriate. For real property acquisition
awards in which the Service will retain an interest, we require
recipients to submit certain information, including:
<bullet> Transactions, such as dates, method of transfer, title
holder, and seller;
<bullet> Identifiers, such as State and Federal Record ID, parcel
number, and property name;
<bullet> Values, such as appraised value, purchase price, and other
cost information, and acres or acre feet;
<bullet> Encumbrances;
<bullet> Partners;
<bullet> Copies of any options, purchase agreements, mineral
assessment reports, and draft conservation easements; and
<bullet> Documentation to demonstrate compliance with 2 CFR part
1402.
Title of Collection: Administrative Procedures for U.S. Fish and
Wildlife Service Financial Assistance Programs.
OMB Control Number: 1018-0100.
Form Number: None.
Type of Review: Revision of a currently approved collection.
Respondents/Affected Public: Individuals/households, private
sector, and State/local/Tribal governments.
Total Estimated Number of Annual Respondents: 15,199.
Total Estimated Number of Annual Responses: 17,170.
Estimated Completion Time per Response: Varies from 15 minutes to
100 hours, depending on activity.
Total Estimated Number of Annual Burden Hours: 403,086.
Respondent's Obligation: Required to obtain or retain a benefit.
Frequency of Collection: On occasion, quarterly, or annually,
depending on activity.
Total Estimated Annual Nonhour Burden Cost: None.
Send your written comments and suggestions on this information
collection by the date indicated in DATES to the Service Information
Collection Clearance Officer, U.S. Fish and Wildlife Service, MS: PRB/
PERMA (JAO), 5275 Leesburg Pike, Falls Church, VA 22041-3803 (mail); or
by email to <a href="/cdn-cgi/l/email-protection#a7eec9c1c8f8e4c8cbcbe7c1d0d489c0c8d1"><span class="__cf_email__" data-cfemail="c28baca4ad9d81adaeae82a4b5b1eca5adb4">[email protected]</span></a>. Please reference OMB Control Number
1018-0100 in the subject line of your comments.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
This proposed rule is not anticipated to constitute a major Federal
action significantly affecting the quality of the human environment.
The Service has preliminarily determined that categorical exclusion 43
CFR 46.210(i)
[[Page 95604]]
applies as the proposed regulation is of an administrative nature and
no extraordinary circumstances in 43 CFR 46.215 apply. Therefore,
preparation of an environmental assessment or environmental impact
statement associated with this proposed rulemaking action is not
required. Once eligible applicants have available funding, they would
submit project proposals for review and consideration and an assessment
under the National Environmental Policy Act and appropriate compliance
would be completed prior to awarding a grant.
Effects on Energy Supply (E.O. 13211)
This proposed rule is not a significant energy action under the
definition in Executive Order 13211. This proposed rule is not a
significant regulatory action under Executive Order 12866 or any
successor order, and it would have no effect on energy supply,
distribution, or use. A statement of energy effects is not required.
Clarity of This Regulation
We are required by Executive Orders 12866 (section 1(b)(12)), 12988
(section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential
Memorandum of June 1, 1998, to write all rules in plain language. This
means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use common, everyday words and clear language rather than
jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that you find unclear, which sections or sentences are too long, the
sections where you feel lists or tables would be useful, etc.
List of Subjects in 50 CFR Part 80
Fish, Fishing, Grant programs--natural resources, Grant programs--
recreation, Grants administration, Hunting, Licensing and Registration,
Natural resources, Rates and fares, Real property acquisition,
Recreation and recreation areas, Reporting and recordkeeping
requirements, Signs and symbols, Wildlife.
Proposed Regulation Promulgation
0
For the reasons discussed in the preamble, the U.S. Fish and Wildlife
Service proposes to revise 50 CFR part 80 to read as follows:
PART 80--ADMINISTRATIVE REQUIREMENTS, PITTMAN-ROBERTSON WILDLIFE
RESTORATION AND DINGELL-JOHNSON SPORT FISH RESTORATION ACTS
Subpart A--General
Sec.
80.1 What does this part do?
80.2 What terms do I need to know?
Subpart B--State Fish and Wildlife Agency Eligibility
80.10 Who is eligible to receive the benefits of the Acts?
80.11 How does a State become ineligible to receive the benefits of
the Acts?
80.12 Must a State fish and wildlife agency confirm that it wants to
receive an annual apportionment of funds?
Subpart C--License Revenue
80.20 What does revenue from hunting and fishing licenses include?
80.21 What if a State diverts license revenue from the control of
its fish and wildlife agency?
80.22 What must a State do to resolve a declaration of diversion?
80.23 Does a declaration of diversion affect a previous Federal
obligation of funds?
Subpart D--Certifying License Holders
80.30 Why must a State fish and wildlife agency certify the number
of paid license holders?
80.31 How does a State fish and wildlife agency certify the number
of paid license holders?
80.32 What is the certification period?
80.33 How does a State fish and wildlife 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 year a license holder is certified?
80.35 What additional options and requirements apply to multiyear
licenses?
80.36 May a State fish and wildlife agency count license holders in
the annual certification if the agency receives funds from the State
or other entity to cover the holders' license fees?
80.37 May the State fish and wildlife agency certify a license sold
at a discount?
80.38 May a State fish and wildlife agency certify a license when an
entity other than the agency offers a discount on a license or
offers a free license?
80.39 What must a State fish and wildlife agency do if it becomes
aware of errors in its certified license data?
80.40 May the Service recalculate an apportionment if a State fish
and wildlife agency submits revised data?
80.41 May the Director correct a Service error in apportioning
funds?
Subpart E--Eligible Activities
80.50 What activities are eligible for funding under the Wildlife
Restoration Act?
80.51 What activities are eligible for funding under the Sport Fish
Restoration Act?
80.52 What activities are eligible for funding under all programs
and subprograms under the Acts?
80.53 May an activity be eligible for funding if it is not
explicitly eligible according to the regulations in this part?
80.54 Are costs of State central services eligible for funding?
80.55 What activities are ineligible for funding?
80.56 May a State fish and wildlife agency receive an award to carry
out part of a larger project?
80.57 How does a proposed project qualify as substantial in
character and design?
80.58 What are public access requirements for activities in an
approved award under the Wildlife Restoration or Sport Fish
Restoration programs?
Subpart F--Allocation of Funds by an Agency
80.60 What is the relationship between the Traditional Wildlife
Restoration Program, the Basic Hunter Education and Safety
subprogram, and the Enhanced Hunter Education and Safety program for
acquiring land for, expanding, or constructing public target ranges?
80.61 What sources of funding in the Wildlife Restoration Act may a
State fish and wildlife agency use to support public target range
projects, and may funds from multiple sources be used in a single
award?
80.62 What are eligible and ineligible 90/10/5 activities?
80.63 What exception is provided for Enhanced Hunter Education and
Safety program funds in relation to Basic Hunter Education and
Safety subprogram funds?
80.64 What requirements apply to funds for the Recreational Boating
Access subprogram?
80.65 What limitations apply to spending on the Aquatic Resource
Education and the State Outreach and Communications subprograms?
80.66 Must a State fish and wildlife agency allocate costs in
multipurpose projects and facilities?
80.67 How does a State fish and wildlife agency allocate costs to an
award in multipurpose projects and facilities?
80.68 Must a State fish and wildlife agency allocate funds between
marine and freshwater fisheries projects?
80.69 What requirements apply to allocation of funds between marine
and freshwater fisheries projects?
80.70 May a State fish and wildlife agency finance an activity from
more than one annual apportionment?
[[Page 95605]]
80.71 What requirements apply to financing an activity from more
than one annual apportionment?
Subpart G--Applying for an Award
80.80 How does a State fish and wildlife agency apply for an award?
80.81 What must a State fish and wildlife agency submit when
applying for a comprehensive-management-system award?
80.82 What must a State fish and wildlife agency submit when
applying for a project-by-project award?
80.83 What is the Federal share of allowable costs?
80.84 How does the Service establish the non-Federal share of
allowable costs?
80.85 What requirements apply to cost sharing?
Subpart H--General Award Administration
80.90 What are the recipient's responsibilities?
80.91 What is a Federal obligation of funds, and how does it occur?
80.92 How long are funds available for a Federal obligation?
80.93 When may a State fish and wildlife agency incur costs under an
award?
80.94 May a State fish and wildlife agency incur costs before the
beginning of the period of performance?
80.95 How does a State fish and wildlife agency receive Federal
award funds?
80.96 May a State fish and wildlife agency use Federal funds without
using cost sharing?
80.97 What is barter, and may a State fish and wildlife agency use
barter of goods or services to carry out a grant-funded project?
80.98 How must a State fish and wildlife agency include barter in an
award and report barter transactions?
80.99 Are symbols available to identify projects?
80.100 Must a State fish and wildlife agency display one of the
symbols set forth in this part on a completed project?
Subpart I--Program Income
80.120 What is program income?
80.121 May a State fish and wildlife agency earn program income?
80.122 May a State fish and wildlife agency deduct the costs of
generating program income from gross income?
80.123 How may a State fish and wildlife agency use program income?
80.124 How may a State fish and wildlife agency use unexpended
program income?
80.125 How must a State fish and wildlife agency treat income that
it earns after the period of performance?
80.126 How must a State fish and wildlife agency treat income earned
by a subrecipient after the period of performance?
Subpart J--Real Property
80.130 Must a State fish and wildlife agency hold title to real
property acquired under an award?
80.131 Must a State fish and wildlife agency hold an easement
acquired under an award?
80.132 Must a State fish and wildlife agency have control over the
land or water where it completes capital improvements?
80.133 Must a State fish and wildlife agency maintain acquired or
completed capital improvements?
80.134 How must a State fish and wildlife agency use real property?
80.135 What if a State fish and wildlife agency allows a use of real
property that interferes with its authorized purpose?
80.136 Is it a diversion if a State fish and wildlife agency does
not use real property acquired under an award for its authorized
purpose?
80.137 What if real property is no longer useful or needed for its
original purpose?
Subpart K--Revisions and Appeals
80.150 How does a State fish and wildlife agency revise an award?
80.151 May a State fish and wildlife agency appeal a decision?
Subpart L--Information Collection
80.160 What are the information collection requirements of this
part?
Authority: 16 U.S.C. 669 et seq., except for provisions specific
to the Wildlife Conservation and Restoration program, and 777-777m,
except 777e-1 and g-1.
Subpart A--General
Sec. 80.1 What does this part do?
This part of the Code of Federal Regulations tells States how they
may:
(a) Use revenues derived from State hunting and fishing licenses in
compliance with the Acts.
(b) Receive annual apportionments from the Federal Aid to Wildlife
Restoration Fund (16 U.S.C. 669(b)), if authorized, and the Sport Fish
Restoration and Boating Trust Fund (26 U.S.C. 9504).
(c) Receive Federal financial assistance awards for eligible
activities under the Traditional Wildlife Restoration program, the
Basic Hunter Education and Safety subprogram, and the Enhanced Hunter
Education and Safety program, including those authorized for hunter
recruitment and recreational shooter recruitment under 16 U.S.C. 669c.
(d) Receive Federal financial assistance awards for eligible
activities under the Sport Fish Restoration program, the Recreational
Boating Access subprogram, the Aquatic Resources Education subprogram,
and the State Outreach and Communications subprogram.
(e) Comply with the requirements of the Acts.
Sec. 80.2 What terms do I need to know?
The terms in this section pertain only to the regulations in this
part.
90/10/5 means activities authorized under Public Law 116-17 for
acquiring land for, expanding, or constructing public target ranges
that apply a 90 percent Federal/10 percent non-Federal cost share and a
5-year period of availability for obligation.
Acquisition of real property means taking ownership or control of a
designated area of land or an interest in land by purchase, assignment,
reversion, gift, eminent domain, or any other method consistent with
State or Federal law. The purpose of the acquisition must be for an
eligible activity to meet the objective of an award.
Acts means the Pittman-Robertson Wildlife Restoration Act of
September 2, 1937 (Wildlife Restoration Act), as amended (16 U.S.C. 669
et seq., except for provisions specific to the Wildlife Conservation
and Restoration program), and the Dingell-Johnson Sport Fish
Restoration Act of August 9, 1950 (Sport Fish Restoration Act), as
amended (16 U.S.C. 777-777m, except 777e-1 and g-1).
Allocate means the process by which States work with the Service to
assign apportioned funds to a specific subaccount based on the eligible
uses. Once allocated, the funding becomes available for obligation to
Federal awards for eligible program activities.
Allowable refers to those costs that meet the general criteria to
be charged to a Federal financial assistance award and comply with the
basic considerations at 2 CFR 200.402 through 200.411, as well as the
general principles for selected items of cost at 2 CFR 200.420 through
200.476.
Angler means a person who fishes for recreational purposes as
permitted by State and/or Federal law.
Apportioned funds are those that are made available to a State
based on formulas in the Acts. Traditional Wildlife Restoration program
funds are apportioned using the formula at 16 U.S.C. 669c(b); Basic
Hunter Education and Safety subprogram funds are apportioned using the
formula at 16 U.S.C. 669c(c); Enhanced Hunter Education and Safety
program funds are apportioned using the formula at 16 U.S.C. 669c(c)
and according to the criteria at 16 U.S.C. 669h-1(a); and Sport Fish
Restoration program funds are apportioned using the formula at 16
U.S.C. 777c(c).
Asset means all tangible and intangible real and personal property
of monetary value. This includes ``capital assets'' as defined at 2 CFR
200.1,
[[Page 95606]]
``equipment'' as defined at 2 CFR 200.1, and real property of any
value.
Award or grant has the same meaning as ``Federal award'' as defined
at 2 CFR 200.1. The regulations in this part use the terms ``award'' or
``grant'' for both a grant and a cooperative agreement for convenience
of reference, and the use does not affect the legal distinction between
the two instruments. An award includes all ``project costs'' as defined
at 2 CFR 200.1. We use the term ``grant'' when making references to
programs (i.e., a grant program).
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) A State fish and wildlife agency may use its own definition of
``capital improvement'' if the agency's definition includes all capital
improvements as defined here.
Comprehensive management system (CMS) is a State fish and wildlife
agency's method of operations that links programs, financial systems,
human resources, goals, products, and services. When using a CMS method
of operations, a State fish and wildlife agency assesses the current,
projected, and desired status of fish and wildlife; develops a
strategic plan and carries it out through an operational planning
process; and evaluates results. The planning period is at least 5 years
using a minimum 15-year projection of the desires and needs of the
State's citizens. A CMS award funds all or part of a State's CMS. For
those States that employ a CMS method of operations, where we refer to
a ``project statement'' in the regulations in this part, a CMS State
might refer to activities as part of its ``operational plan.''
Construction means the act of building or significantly renovating,
altering, or repairing a structure. Acquiring, clearing, and reshaping
land and demolishing structures are types or phases of construction.
Examples of structures are buildings, roads, parking lots, utility
lines, fences, piers, wells, pump stations, ditches, dams, dikes,
water-control structures, fish-hatchery raceways, and shooting ranges.
For the purposes of 90/10/5 projects (acquiring land for, expanding, or
constructing public target ranges), constructing means building a
public target range (see Sec. Sec. 80.60 and 80.62, 16 U.S.C.
669g(b)(2) and 669h-1(b)(2)).
Cost sharing has the same meaning as at 2 CFR 200.1. Cost sharing
must meet the requirements at 2 CFR 200.306(b)(1) through (7) and
Sec. Sec. 80.83 through 80.85.
Director has the same meaning as at 50 CFR 1.4 and, for the
purposes of this part, means:
(1) The person whom the Secretary delegated to administer the Acts
nationally; or
(2) A deputy or another person authorized temporarily to administer
the Acts nationally.
Diversion means any use of revenue from hunting and fishing
licenses for a purpose other than administration of the State fish and
wildlife agency.
Eligible refers to activities or actions for a Federal financial
assistance program that are authorized by Congress through a statute or
by Federal agency regulations to accomplish a public purpose under that
program.
Equipment has the same meaning as at 2 CFR 200.1.
Expanding means, for the purposes of projects for acquiring land
for, expanding, or constructing public target ranges (90/10/5),
physical improvements to an existing public target range that add to
the utility of the range in a manner that ultimately increases range
capacity to accommodate more participants. Physical improvements do not
necessarily have to increase the size of the facility but must result
in an increase in physical usability that will accommodate more
participants.
Facility means the physical infrastructure and appurtenances
necessary to support purposes under the Acts. The physical
infrastructure includes land.
Federal fiscal year (FFY) means the annual period the Federal
Government uses for budgets and accounting, beginning October 1 and
ending September 30.
Fee interest means the right to possession, use, and enjoyment of a
parcel of land or water for an indefinite period. A fee interest, as
used in this part, may be the:
(1) Fee simple or full-fee interest, which includes all possible
interests or rights that a person or legal entity can hold in a parcel
of real property (land or water); or
(2) Fee with exceptions to title or less-than-full-fee interest,
which excludes one or more real property interests that would otherwise
be part of the fee simple.
Fiscal year, for the purposes of determining the number of paid
hunting- or fishing-license holders in a State, means the State-
determined (State fiscal year or license year) period that it
identifies to certify license holders.
Fish restoration and management project means the restoration and
management of any species of fish that has material value in connection
with sport or recreation (see Sport fish) in the marine and/or fresh
waters of the United States.
Hunter recruitment and recreational shooter recruitment means any
activity or project to recruit or retain and, for the purposes of the
regulations in this part, reactivate hunters and recreational shooters
including by:
(1) Outreach and communications as a means--
(i) To improve communications with hunters, recreational shooters,
and the public with respect to hunting and recreational shooting
opportunities;
(ii) To reduce barriers to participation in these activities;
(iii) To advance the adoption of sound hunting and recreational
shooting practices;
(iv) To promote conservation and the responsible use of the
wildlife resources of the United States; and
(v) To further safety in hunting and recreational shooting.
(2) Providing education, mentoring, and field demonstrations;
(3) Enhancing access for hunting and recreational shooting,
including through range construction; and
(4) Providing education to the public about the role of hunting and
recreational shooting in funding wildlife conservation.
Law enforcement means enforcing laws, orders, and regulations.
Lease means an agreement in which the owner of a fee interest
transfers to a lessee the right of exclusive possession and use of an
area of land or water for a fixed period, which may be renewable. The
lessor cannot readily revoke the lease at their discretion. The lessee
pays rent periodically or as a single payment. The lessor must be able
to regain possession of the lessee's interest (leasehold interest) at
the end of the lease term. An agreement that does not correspond to
this definition is not a lease even if it is labeled as one.
Maintenance means keeping a facility or equipment in a condition to
serve the intended purpose. It includes recurring, cyclical, or
occasional actions to keep a facility or equipment fully functional
that are less than the threshold for a capital improvement or capital
expenditure for improvement. It does not include operations. Examples
of maintenance activities include but are not limited to:
(1) Routine upkeep for physical and mechanical parts of a facility;
and
(2) Replacing components of a facility or a piece of equipment that
are
[[Page 95607]]
expected to need replacement during its useful life.
Obligation has two meanings depending on the context:
(1) When a recipient of Federal financial assistance commits funds
by incurring costs for purposes of the award, the definition for
``financial obligations'' at 2 CFR 200.1 applies.
(2) When the Service sets aside funds in an award for disbursement
immediately or at a later date in the formula-based programs under the
Acts, the definition at Sec. 80.91 applies.
Operations means supporting the availability of a facility and its
components for current public or other intended use. Operations include
necessary activities that occur frequently (daily, weekly, monthly).
The term does not include maintenance. Operations may be divided into
the categories of physical or administrative. Examples include but are
not limited to:
(1) Physical activities such as trash removal, portable toilet
services, and utility costs; and
(2) Administrative operations such as personnel costs to manage and
keep a facility open.
Period of performance has the same meaning as at 2 CFR 200.1.
Personal property means anything tangible or intangible that is not
real property.
(1) Tangible personal property includes:
(i) Objects, such as equipment and supplies, that are movable
without substantive damage to the land or any structure to which they
may be attached and not considered an inherent part of the land;
(ii) Soil, rock, gravel, minerals, gas, oil, or water after
excavation or extraction from the surface or subsurface;
(iii) Commodities derived from trees or other vegetation after
harvest or separation from the land; and
(iv) Annual crops before or after harvest.
(2) Intangible personal property has the same meaning as at 2 CFR
200.1 and includes:
(i) Intellectual property, such as patents or copyrights;
(ii) Securities, such as bonds and interest-bearing accounts; and
(iii) Licenses, which are personal privileges (not a real property
interest) granted by consent of a landowner, lessee, or tenant to use
an area of land or water that would otherwise be trespass or another
violation of law, with at least one of the following attributes:
(A) Are revocable at the discretion of the entity consenting to the
license;
(B) Terminate when the area of land or water passes to another
owner, the lease or tenancy ends, or the landowner, lessee, or tenant
dies; or
(C) Do not transfer a right of exclusive use and possession of an
area of land or water.
Project means one or more related undertakings in a project-by-
project award that are necessary to fulfill a need or needs, as defined
by a State fish and wildlife agency, consistent with the purposes of
the appropriate Act. For convenience of reference in this part, the
meaning of ``project'' includes an agency's fish and wildlife program
under a CMS award.
Project-by-project award means an award of money based on a
detailed statement of a project, or projects, and other supporting
documentation.
Public means of, relating to, or affecting all people in general.
Public access means the public has opportunity, permission, and/or
ability to enter, approach, pass to, from, and within, and
appropriately use a place/facility for an authorized purpose (see Sec.
80.58 for further requirements).
Public target range, including mobile public target ranges and
privately owned target ranges during those times when open for public
use, means a specific location that--
(1) Is identified by a governmental agency for recreational
shooting;
(2) Is open to the public;
(3) May be supervised; and
(4) May accommodate archery or rifle, pistol, or shotgun shooting.
Public relations means those activities dedicated to maintaining
the image of the non-Federal entity (recipient or subrecipient) or
maintaining or promoting understanding and favorable relations with the
community, public at large, or any segment of the public. This term
could include communicating with the public about specific activities
or accomplishments resulting from approved projects or communication
and liaison necessary to keep the public informed on matters of public
concern such as notices of funding opportunities. (See also
``advertising and public relations'' in 2 CFR part 200).
R3 means to recruit, retain, and/or reactivate members of the
public to actively participate in the outdoor recreational activities
of hunting, angling, boating, and recreational shooting. State fish and
wildlife agencies and other involved partners may define R3 more
broadly, but agencies must use funds under the Acts only for activities
that are eligible under the regulations in this part.
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 fees, 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.
Recipient for the purposes of the regulations in this part means
the entities eligible to receive apportionments under the Acts (see
Sec. 80.10).
Regional Director has the same meaning as at 50 CFR 1.7. This
person's responsibility does not extend to any administrative units
that the Service's Washington Office supervises directly in that
geographic region.
Secretary has the same meaning as at 50 CFR 1.8.
Service has the same meaning as at 50 CFR 1.3.
Sport fish means aquatic, gill-breathing, vertebrate animals with
paired fins, having material value for recreation in the marine and
fresh waters of the United States.
State means any State of the United States, the Commonwealth of
Puerto Rico, and the insular areas of the Commonwealth of the Northern
Mariana Islands, the Territory of Guam, the Territory of the U.S.
Virgin Islands, and the Territory of American Samoa.
(1) ``State'' also includes the District of Columbia for purposes
of the Sport Fish Restoration Act, the Sport Fish Restoration program,
and its subprograms. ``State'' does not include the District of
Columbia for purposes of the Wildlife Restoration Act and the programs
and subprogram under the Act
[[Page 95608]]
because the Wildlife Restoration Act does not authorize funding for the
District.
(2) References to ``the 50 States'' apply only to the 50 States of
the United States and do not include the Commonwealths of Puerto Rico
and the Northern Mariana Islands, the District of Columbia, or the
Territories of Guam, the U.S. Virgin Islands, and American Samoa.
State fish and wildlife agency (or agency) means the administrative
unit designated by State law or regulation to carry out State laws for
management of fish and wildlife resources. If an agency has other
jurisdictional responsibilities, the agency is considered the State
fish and wildlife agency only when exercising responsibilities specific
to management of the State's fish and wildlife resources.
Subaccount (and account) means the fiscal management designation
used in the Service's financial system to identify funds by program and
subprogram allocation (see Sec. 80.61 for a description of subaccounts
and the financial system). Different subaccounts also distinguish
between benefits to marine or freshwater fisheries in the programs and
subprograms authorized by the Sport Fish Restoration Act.
Subaward has the same meaning as at 2 CFR 200.1 A subaward may
serve as a third-party binding agreement where required.
Subrecipient has the same meaning as at 2 CFR 200.1.
Traditional Wildlife Restoration program, for the purposes of the
regulations in this part and associated policies, means the activities
that are funded under apportionments authorized at 16 U.S.C. 669c(b),
which reflects the original program funded under the Wildlife
Restoration Act of 1937 (see eligible activities at Sec. 80.50(a)). We
use this term for clarity when administering awards, as many eligible
activities are specific to funding sources within the Act.
Useful life means the period during which a federally funded
capital improvement, capital asset, or equipment is capable of
fulfilling its intended purpose with adequate routine maintenance.
Wildlife means the indigenous or naturalized species of birds or
mammals that are either:
(1) Wild and free-ranging;
(2) Held in a captive-breeding program established to reintroduce
individuals of a depleted indigenous species into previously occupied
range; or
(3) Under the jurisdiction of a State fish and wildlife agency.
Wildlife restoration project means the selection, restoration,
rehabilitation, and improvement of areas of land or water adaptable as
feeding, resting, or breeding places for wildlife, including
acquisition 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 those
projects.
Subpart B--State Fish and Wildlife Agency Eligibility
Sec. 80.10 Who is eligible to receive the benefits of the Acts?
States acting through their fish and wildlife agencies are eligible
for benefits of the Acts only if they pass and maintain legislation
that:
(a) Assents to the provisions of the Acts;
(b) Ensures the conservation of fish and wildlife; and
(c) Requires that revenue from hunting and fishing licenses be:
(1) Controlled only by the State fish and wildlife agency; and
(2) Used only for administration of the State fish and wildlife
agency, which includes only the functions required to manage the agency
and the fish- and wildlife-related resources for which the agency has
authority under State law.
Sec. 80.11 How does a State become ineligible to receive the benefits
of the Acts?
A State becomes ineligible to receive the benefits of the Acts if
the State:
(a) Fails materially to comply with any law, regulation, or terms
and conditions of the Federal award as it relates to acceptance and use
of funds under the Acts;
(b) Does not have legislation required at Sec. 80.10 or passes
legislation contrary to the Acts; or
(c) Diverts hunting and fishing license revenue from:
(1) The control of the State fish and wildlife agency; or
(2) Purposes other than the agency's administration.
Sec. 80.12 Must a State fish and wildlife agency confirm that it
wants to receive an annual apportionment of funds?
No. However, if a State fish and wildlife agency does not want to
receive the annual apportionment of funds, it must notify the Service
in writing within 60 days after receiving a preliminary certificate of
apportionment.
Subpart C--License Revenue
Sec. 80.20 What does revenue from hunting and fishing licenses
include?
Hunting and fishing license revenue includes:
(a) All proceeds from State-issued general or special hunting and
fishing licenses, permits, stamps, tags, access and use fees, and other
State charges to hunt or fish for recreational purposes. Revenue from
licenses sold by vendors is net income to the State after deducting
reasonable sales fees or similar amounts retained by vendors.
(b) Real or personal property acquired with license revenue.
(c) Income from the sale, lease, or rental of, granting rights to,
or a fee for access to real or personal property acquired or
constructed with license revenue.
(d) Income from the sale, lease, or rental of, granting rights to,
or a fee for access to a recreational opportunity, product, or
commodity derived from real or personal property acquired, managed,
maintained, or produced by using license revenue.
(e) Interest, dividends, or other income earned on license revenue.
(f) Reimbursements for expenditures originally paid with license
revenue.
(g) Payments received for services funded by license revenue.
Sec. 80.21 What if a State diverts license revenue from the control
of its fish and wildlife agency?
The Director may declare a State to be in diversion if it violates
the requirements of Sec. 80.10 by diverting license revenue from the
control of its fish and wildlife agency to purposes other than the
agency's administration. The State is then ineligible to receive
benefits under the relevant Act from the date the Director signs the
declaration until the date the State resolves the diversion. Only the
Director may declare a State to be in diversion, and only the Director
may rescind the declaration.
Sec. 80.22 What must a State do to resolve a declaration of
diversion?
The State must complete the actions in paragraphs (a) through (e)
of this section to resolve a declaration of diversion. The State must
use a source of funds other than license revenue to fund the
replacement of license revenue.
(a) If necessary, the State must enact adequate legislative
prohibitions to prevent diversions of license revenue.
[[Page 95609]]
(b) The State fish and wildlife agency must replace all diverted
funds derived from license revenue and the interest lost up to the date
of repayment. The agency must update financial records for the receipt
of the diverted funds and interest accordingly.
(c) The agency must receive either the revenue earned from diverted
property during the period of diversion or the current market rental
rate of any diverted property, whichever is greater.
(d) The agency must take one of the following actions to resolve a
diversion of real, personal, or intellectual property:
(1) Regain management control of the property, which must be in
about the same condition as before diversion;
(2) Receive replacement property that meets the criteria in
paragraph (e) of this section; or
(3) Receive an amount at least equal to the current market value of
the diverted property only if the Director agrees that the actions
described in paragraphs (d)(1) and (2) of this section are impractical.
(e) To be acceptable under paragraph (d)(2) of this section:
(1) Replacement property must have both:
(i) Market value that at least equals the current market value of
the diverted property; and
(ii) Fish or wildlife benefits that at least equal those of the
property diverted.
(2) The Director must agree that the replacement property meets the
requirements of paragraph (e)(1) of this section.
Sec. 80.23 Does a declaration of diversion affect a previous Federal
obligation of funds?
No. Federal funds obligated before the date that the Director
declares a diversion remain available for expenditure without regard to
the intervening period of the State's ineligibility. See Sec. 80.91
for when a Federal obligation occurs.
Subpart D--Certifying License Holders
Sec. 80.30 Why must a State fish and wildlife agency certify the
number of paid license holders?
A State fish and wildlife agency must certify the number of
individuals 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 a State fish and wildlife agency certify the
number of paid license holders?
(a) A State fish and wildlife agency certifies the number of paid
license holders by responding to the Director's annual request for the
following information:
(1) The number of individual paid hunting license holders in the
State during the State-specified certification period (certification
period); and
(2) The number of individual paid fishing license holders in the
State during the certification period.
(b) The State fish and wildlife agency director or their designee:
(1) Must certify the information described 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 they certify and may use
statistical sampling, automated record consolidation, or other
techniques approved by the Director for this purpose.
(c) If a State fish and wildlife agency director uses statistical
sampling to eliminate multiple counting of the same individuals, they
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 FFY in which the apportioned funds first become
available for expenditure.
Sec. 80.33 How does a State fish and wildlife agency decide who to
count as paid license holders in the annual certification?
(a) A State fish and wildlife agency must count only those
individuals who have a license issued:
(1) In the license holder's name; or
(2) With a unique identifier that is traceable to the license
holder, who must be verifiable in State records.
(b) An agency must count an individual in the annual certification:
(1) Only once, and in the certification period in which the license
first becomes valid, when holding a single-year license. A single-year
license is valid for any length of time from 1 day to less than 2
years. If valid 2 years or more, a license is considered a multiyear
license and may be valid for a specific number of years that is 2 or
more, or for the lifetime of the individual (see Sec. 80.35(d)).
(2) Only for the number of years the license is valid and starting
in the certification period in which the license first becomes valid,
unless that year has already been certified in the case of multiyear
licenses. An individual holding a multiyear license may be counted for
only the number of years the license is valid and only during the
applicable certification periods.
(3) Only for the number of years allowed under Sec. 80.35, when
holding a lifetime license.
(c) An individual is counted as a valid license holder when meeting
requirements at Sec. 80.34, even if the individual is not required to
have a paid license.
(d) An individual having more than one valid hunting license is
counted only once each certification period as a hunter. An individual
having more than one valid fishing license is counted only once each
certification period as an angler. An individual 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 the license(s) or was
required to obtain the license(s) to receive a different privilege.
(e) An individual 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 year a license holder is certified?
(a) Yes. A State fish and wildlife agency must receive a minimum
amount of gross revenue for each year a license holder is certified.
(b) 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 certified, for either the
privilege to hunt or the privilege to fish; or
(2) $4 for each year the license is certified for a combination
license that gives privileges to both hunt and fish.
[[Page 95610]]
Sec. 80.35 What additional options and requirements apply to
multiyear licenses?
In addition to the requirements at Sec. 80.34, the following
provisions apply to multiyear licenses:
(a) An agency may spend the proceeds derived from a multiyear
license fee as soon as the agency receives payment.
(b) 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.
(c) The agency may count a license holder for the number of
certification periods for which all the following requirements are met:
(1) The license holder meets all other requirements of this
subpart;
(2) The license is currently valid;
(3) The agency received the minimum required revenue for each
certification period during the duration of the license, in the case of
a multiyear license with a specified ending date;
(4) The license holder remains alive (see paragraph (d) of this
section), in the case of a lifetime license or other license with no
specified ending date; and
(5) If the license is valid for less than the number of years that
it meets the minimum required revenue, or the license exceeds the life
expectancy of the holder, the agency may count the license holder only
for the number of years during which all certification requirements are
met. For example, an agency may count for 12 certification periods a
license holder who purchased a single-privilege, multiyear license that
sells for $25 and is valid for at least 12 years.
(d) 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.
(e) For currently valid multiyear licenses sold prior to September
26, 2019 (the effective date of the rule promulgated at 84 FR 44772,
August 27, 2019), an agency may apply the provisions of Sec. 80.34 to
those multiyear licenses under the following situations:
(1) All the requirements in paragraph (c) of this section are met.
(2) The agency may count a multiyear license holder only once in
any certification period (see Sec. 80.33) when the license holder
purchased another license with the same privilege within an allowable
future certification period.
(3) An agency must count the license holder only for the
appropriate number of current or future certification periods. The
provisions of Sec. 80.34 are not retroactive to past certification
periods.
(4) For an illustration of the applications provided in this
paragraph (e), see table 1 to paragraph (e):
Table 1 to Paragraph (e)--Scenarios for Counting License Holders Under
the Requirements for Gross Revenue at Sec. 80.34
[For use in counting valid multiyear licenses sold prior to September
26, 2019]
------------------------------------------------------------------------
Scenario 1 Scenario 2
------------------------------------------------------------------------
An agency sold a single-privilege multiyear license, valid for 10 years,
for $100 in 2014 (term of license 2014-2023)
------------------------------------------------------------------------
The agency spent the money and was able The agency invested the funds
to count the license during only one into an annuity that produced
certification period based on the enough income to allow the
regulations promulgated in 2014. license holder to be counted
in all certification periods
since the date of the license
sale.
Applying the standard at Sec. Applying the standard at Sec.
80.34(b)(1) to the original license 80.34(b)(1) to the original
cost results in a potential for 50 license cost results in a
certification periods ($100/$2 per potential for 50 certification
year = 50). periods ($100/$2 per year =
50).
After subtracting the 1 certification After subtracting the 6 (2014-
period that was already counted, 49 2019) certification periods
potential certification periods remain. already counted, 44 potential
certification periods remain.
Because the license is valid for only Because the license is valid
10 years, and through 2023, under for only 10 years, under
scenario 1 the agency could count the scenario 2 the agency could
license holder only from 2019 through count the license holder in an
the end of the term of the license additional four (2020-2023)
(2023) or an additional five certification periods.
certification periods.
------------------------------------------------------------------------
Sec. 80.36 May a State fish and wildlife agency count license holders
in the annual certification if the agency receives funds from the State
or other entity to cover the holders' 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 State fish and wildlife 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 State fish and wildlife agency must receive and account for
the State or other entity funds as license revenue.
(e) The State fish and wildlife 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?
Yes. A State fish and wildlife agency may certify a license that is
sold at a discount if the agency meets the rules for minimum gross
revenue at Sec. 80.34.
[[Page 95611]]
Sec. 80.38 May a State fish and wildlife agency certify a license
when an entity other than the agency offers a discount on a license or
offers a free license?
A State fish and wildlife agency may certify a license when an
entity other than the agency offers a license that costs less than the
regulated price only if:
(a) The license is issued to the individual according to the
requirements at Sec. 80.33;
(b) The amount received by the agency meets all other requirements
in this subpart; and
(c) The license meets any other conditions required by the agency.
Sec. 80.39 What must a State fish and wildlife 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 license holders within 90 days after it becomes aware of errors in
its certified data. The State may become ineligible to participate in
the benefits of the relevant Act if the State 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 a State
fish and wildlife agency submits revised data?
The Service may recalculate an apportionment of funds based on
revised certified license data under the following conditions:
(a) If the Service receives revised certified data for a pending
apportionment before the Director approves the final apportionment, the
Service may recalculate the pending apportionment.
(b) If the Service receives revised certified data for an
apportionment after the Director has approved the final version of that
apportionment, the Service may recalculate the apportionment only if it
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
Sec. 80.50 What activities are eligible for funding under the
Wildlife Restoration Act?
The following activities are eligible for funding in these programs
and subprograms under the Wildlife Restoration Act:
(a) Traditional Wildlife Restoration program. The following
wildlife restoration projects and other associated activities are
eligible for funding under apportionments authorized at 16 U.S.C.
669c(b).
(1) Restoring and managing wildlife for the benefit of the public.
(2) Conducting research on the problems of managing wildlife and
its habitat if necessary to administer wildlife resources efficiently.
This research may include social science activities.
(3) Obtaining data to guide and direct the regulation of hunting.
(4) Acquiring real property suitable or capable of being made
suitable for:
(i) Wildlife habitat or management;
(ii) Providing public access for hunting or other wildlife-oriented
recreation; or
(iii) Supporting other eligible activities described under this
paragraph (a).
(5) Wildlife restoration projects for restoring, rehabilitating,
improving, managing, or maintaining areas of lands or waters as
wildlife habitat.
(6) Building structures or acquiring equipment, goods, and services
for:
(i) Restoring, rehabilitating, or improving lands or waters as
wildlife habitat;
(ii) Supporting wildlife management;
(iii) Providing public access for hunting or other wildlife-
oriented recreation; or
(iv) Supporting other eligible activities described under this
paragraph (a).
(7) Acquiring land for, expanding, or constructing public target
ranges following the requirements of Sec. 80.60 when combining up to
10 percent of annually apportioned Traditional Wildlife Restoration
funds (16 U.S.C. 669c(b)) with Enhanced Hunter Education and Safety
funds (16 U.S.C. 669h-1). When Traditional Wildlife Restoration funds
are committed to the Wildlife Restoration for Public Target Ranges 90/
10/5 subaccount, they are no longer eligible for Traditional Wildlife
Restoration activities.
(8) Communicating with the public (see Sec. 80.52(h)), including:
(i) Outreach and sharing information on award activities,
accomplishments, performance, or other communication related to meeting
the objectives of an award;
(ii) Providing the public with information on Wildlife Management
Areas; public access for hunting or other wildlife-associated
recreation; notices on safety, rule changes, and topics of interest to
the public related to wildlife management; and other opportunities
available to the public as a result of a Traditional Wildlife
Restoration award;
(iii) Liaising with the media or other venues to provide public
information related to the objectives of an award; or
(iv) Other forms of communication that support a State's wildlife
restoration and management objectives in an award.
(9) Public relations, advertising as a form of outreach, and
marketing that are associated with achieving eligible objectives
require prior approval of the Service. These activities are allowable
only when included in the approach of an approved award to accomplish
eligible activities and meet award objectives. Communication that
solely benefits the agency is unallowable public relations and is not
eligible for funding under the Act.
(b) Basic Hunter Education and Safety subprogram and Hunter
Recruitment and Recreational Shooter Recruitment. (1) The following
activities are eligible under the Basic Hunter Education and Safety
subprogram for activities authorized at 16 U.S.C. 669g(b):
(i) Teaching the skills, knowledge, and attitudes necessary to be a
responsible hunter.
(ii) Developing and improving access to public target ranges by:
(A) Acquiring real property suitable or capable of being made
suitable for public target ranges, including through licenses or third-
party binding agreements that provide assurances for public access (see
Sec. 80.58).
(B) Constructing, upgrading, or restoring public target ranges to a
useful condition.
(C) Operating or maintaining public target ranges.
(D) Acquiring land for, expanding, or constructing public target
ranges as 90/10/5 projects following Sec. Sec. 80.60 and 80.62.
(E) Constructing, operating, or maintaining educational facilities
to support Hunter Education.
(2) The following activities are eligible when directly supporting
recruiting, retaining, or reactivating hunters or recreational shooters
(R3), as authorized at 16 U.S.C. 669c(c)(4).
(i) Communicating with hunters, recreational shooters, and the
public about hunting and recreational shooting and associated
opportunities by:
(A) Promoting conservation and the responsible use of the wildlife
resources of the United States as part of an effort to recruit, retain,
or reactivate hunters or recreational shooters.
(B) Promoting a State's R3 program, special events, and
opportunities.
(C) Providing outreach on public target range availability, access,
and locations.
[[Page 95612]]
(D) Marketing, publications, press releases, and media relations
for content directly related to R3 activities.
(ii) Interpreting, translating, printing, or disseminating
published State hunting regulations to inform and educate the public
about their responsibilities to comply with laws, orders, and
regulations.
(iii) Using a State fish and wildlife agency's website, cell phone
or software products, online support systems, or other appropriate
communication tools to engage the public in activities supporting a
State's R3 efforts (see Sec. 80.55(c) for exclusions related to
income-producing activities).
(iv) Supporting the scope and impact of a State's R3 program by:
(A) Reducing barriers to hunting and recreational shooting
opportunities;
(B) Furthering safety in hunting and recreational shooting;
(C) Providing education, mentoring, field demonstrations, and other
similar opportunities to recruit, retain, or reactivate hunters or
recreational shooters;
(D) Constructing, operating, or maintaining educational facilities
to the extent they support R3 activities;
(E) Supporting programs for hunting or recreational shooting that
have been developed or are delivered by other entities; and
(F) Offering activities that support R3 for youth and beginner
hunters or recreational shooters, such as R3 camps and mentoring
programs.
(v) Constructing, operating, or maintaining public target ranges,
including mobile public target ranges.
(vi) Educating the public about the role of hunting and
recreational shooting in funding wildlife conservation.
(vii) Supplying services that support R3 activities, such as hunt
guides, trainers for shooting, and celebrity endorsements.
(viii) Acquiring supplies that enhance the experience and skills
for hunters and recreational shooters.
(ix) Engaging in other allowable activities that directly support
recruiting, retaining, or reactivating hunters or recreational
shooters.
(c) Enhanced Hunter Education and Safety program. The following
activities are eligible under Enhanced Hunter Education and Safety for
activities authorized at 16 U.S.C. 669h-1:
(1) Enhancing programs for hunter education, hunter development,
and firearm and archery safety. Hunter-development programs introduce
individuals to and recruit them to take part in hunting, bow hunting,
target shooting, or archery.
(2) Enhancing interstate coordination and developing hunter-
education and public target range programs.
(3) Enhancing programs for education, safety, or development of
firearm and bow hunters and recreational shooters.
(4) Enhancing development, construction, upgrades, rehabilitation,
and improved safety features at public target ranges.
(5) Acquiring real property suitable or capable of being made
suitable for public target ranges.
(6) Enhancing operation and maintenance of public target ranges.
(7) Enhancing access for hunting and recreational shooting
opportunities.
(8) Acquiring land for, expanding, or constructing public target
ranges following the regulations at Sec. 80.60.
(9) Enhancing the hunter and recreational shooter R3 activities
listed at paragraph (b)(2) of this section.
Sec. 80.51 What activities are eligible for funding under the Sport
Fish Restoration Act?
The following activities are eligible for funding in these programs
and subprograms under the Sport Fish Restoration Act:
(a) Sport Fish Restoration program. The following fish restoration
and management projects and other associated activities are eligible
for funding under apportionments authorized at 16 U.S.C. 777c(c)(1).
(1) Restoring and managing sport fish for the benefit of the
public.
(2) Conducting research on the problems of managing fish and their
habitat and the problems of fish culture if necessary to administer
sport fish resources efficiently. This research may include social
science activities.
(3) Obtaining data to guide and direct the regulation of fishing.
These data may be on:
(i) Size and geographic range of sport fish populations;
(ii) Changes in sport fish populations due to fishing, other human
activities, or natural causes; and
(iii) Effects of any measures or regulations applied.
(4) Developing and adopting plans to restock sport fish and forage
fish in the natural areas or districts covered by the plans and obtain
data to develop, carry out, and test the effectiveness of the plans.
(5) Stocking fish for recreational purposes.
(6) Acquiring real property suitable or capable of being made
suitable for:
(i) Sport fish habitat, as a buffer to protect that habitat, or
sport fish management;
(ii) Providing public access for sport fishing; or
(iii) Supporting other eligible activities described under this
paragraph (a).
(7) Implementing fish restoration and management projects to
restore, rehabilitate, improve, manage, or maintain:
(i) Aquatic areas adaptable for sport fish habitat; or
(ii) Land adaptable as a buffer to protect sport fish habitat.
(8) Building structures or acquiring equipment, goods, and services
for:
(i) Restoring, rehabilitating, or improving aquatic habitat for
sport fish or land as a buffer to protect aquatic habitat for sport
fish;
(ii) Supporting sport fish management;
(iii) Providing public access for sport fishing; or
(iv) Supporting other eligible activities described under this
paragraph (a).
(9) Constructing, renovating, operating, or maintaining pumpout and
dump stations. A pumpout station is a facility that pumps or receives
sewage from a type III marine sanitation device that the U.S. Coast
Guard requires on some vessels. A dump station, also referred to as a
``waste reception facility,'' is specifically designed to receive waste
from portable toilets on vessels.
(10) Communicating with the public (see Sec. 80.52(h)) to include:
(i) Conducting outreach and sharing information on award
activities, accomplishments, performance, or other communication
related to meeting the objectives of an award;
(ii) Providing the public with information on sport fish management
areas; public access for fishing or other sport fish-associated
recreation; notices on safety, rule changes, and topics of interest to
the public related to sport fish management; and other opportunities
available to the public as a result of a Sport Fish Restoration award;
(iii) Liaising with the media or other venues to provide public
information related to the objectives of an award; or
(iv) Engaging in other forms of communication that support a
State's sport fish restoration and management objectives in an award.
(11) Conducting public relations, advertising as a form of
outreach, and marketing that are associated with achieving eligible
objectives require prior approval of the Service. These activities are
allowable only when included in the approach of an approved award to
accomplish eligible activities and meet award objectives. Communication
that solely benefits the
[[Page 95613]]
agency is unallowable public relations and is not eligible for funding
under the Act.
(b) Sport Fish Restoration--Recreational Boating Access subprogram.
(1) Conducting projects and activities that may include those for
motorized or nonmotorized vessels and users.
(2) Acquiring real property, including water rights, suitable or
capable of being made suitable for:
(i) Building, renovating, or improving facilities to create or
enhance public access to the waters of the United States;
(ii) Improving the suitability of these waters for recreational
boating; or (iii) Providing benefits for recreational boating.
(3) Constructing a broad range of recreational boating access
facilities that also may provide services or amenities to recreational
boaters. ``Facilities'' includes auxiliary structures necessary to
ensure safe use of recreational boating access facilities.
(4) Conducting surveys to determine the adequacy, number, location,
and quality of facilities providing access to recreational waters for
all sizes of recreational boats.
(5) Developing new, or redeveloping or expanding existing, boating
access sites.
(c) Sport Fish Restoration--Aquatic Resource Education subprogram.
Enhancing the public's understanding of water resources, aquatic life
forms, and sport fishing, and developing responsible attitudes and
ethics toward the aquatic environment.
(d) Sport Fish Restoration--State Outreach and Communications
subprogram. (1) Improving communications with anglers, boaters, and the
public on sport fishing and boating opportunities.
(2) Interpreting, translating, printing, or disseminating published
State fishing regulations to inform and educate the public about their
responsibilities to comply with laws, orders, and regulations.
(3) Increasing participation in sport fishing and boating through
R3 programs and activities.
(4) Advancing the adoption of sound fishing and boating practices
including safety.
(5) Promoting conservation and responsible use of the aquatic
resources of the United States.
Sec. 80.52 What activities are eligible for funding under all
programs and subprograms under the Acts?
The following activities, when supporting other eligible activities
under a program or subprogram and costs are allocated to the
appropriate funding source, are eligible for funding:
(a) Conducting planning and compliance activities such as
engineering, designing, surveying, obtaining permits or appraisals, and
conducting environmental and archeological assessments.
(b) Engaging in oversight activities related to an award, such as:
(1) Monitoring, evaluating, and reporting;
(2) Investigating noncompliance or diversions; and
(3) Protecting property rights for real property that is carrying
out the purposes of the Acts.
(c) Maintaining and operating facilities and equipment under the
ownership or management control of the State fish and wildlife agency,
or under a third-party binding agreement, that support eligible
activities under the Wildlife Restoration Act or Sport Fish Restoration
Act.
(d) Covering costs associated with State electronic data systems
(SEDS), when appropriately allocated and approved by the Service. A
SEDS is an electronic system used by a State fish and wildlife agency
to sell licenses or support other financial transactions, collect and
manage data, and communicate information. The functions and abilities
of a SEDS may vary depending on the State fish and wildlife agency
needs and organization.
(e) Administering awards (see also Sec. 80.54) and coordinating
awards in associated programs and subprograms.
(f) Providing technical assistance.
(g) Making payments in lieu of taxes on real property under the
control of the State fish and wildlife agency when the payment is:
(1) Required by State or local law; and
(2) Required for all State lands, including those acquired with
Federal funds and those acquired with non-Federal funds.
(h) Communicating with the public on eligible activities in an
award, when allowable under 2 CFR part 200, subpart E. This
communication may include using various forms of media and technology
and does not require prior approval (see also Sec. Sec. 80.50(a)(8)
and 80.51(a)(10)).
(i) Advertising (see 2 CFR 200.421) to hire personnel for eligible
activities, for procuring goods or services for an eligible activity,
or to inform the public or a target audience about events or
opportunities that support purposes of the Acts.
Sec. 80.53 May an activity be eligible for funding if it is not
explicitly eligible according to the regulations in this part?
Yes. An activity may be eligible for funding even if the
regulations in this part do not explicitly designate it as an eligible
activity if:
(a) The State fish and wildlife agency justifies in the project
statement how the activity will help carry out the purposes of the
program or subprogram under the Wildlife Restoration Act or the Sport
Fish Restoration Act;
(b) The activities are allowable under 2 CFR part 200; and
(c) The Regional Director concurs with the justification.
Sec. 80.54 Are costs of State central services eligible for funding?
Yes. Administrative costs in the form of overhead or indirect costs
for State central services outside of the State fish and wildlife
agency are eligible for funding under the Acts and must follow an
approved cost-allocation plan. These expenses must not exceed 3 percent
of the funds apportioned annually to the State under the Acts.
Sec. 80.55 What activities are ineligible for funding?
The following activities are ineligible for funding under the Acts,
except when necessary to carry out project purposes approved by the
Regional Director:
(a) Law enforcement activities (see definition at Sec. 80.2).
(b) The formal administrative process for establishing State fish
and wildlife agency regulations. This process:
(1) Begins when boards, commissions, or other policymakers receive
information and recommendations from State fish and wildlife agencies
and use this input to develop and implement public policy.
(2) Involves official filing and publication of regulations,
including State administrative procedures to officially adopt rules and
laws to meet authoritative requirements.
(3) Includes printing and distributing the official code of
regulations, or State equivalent, except as provided for under
Sec. Sec. 80.50(b)(2)(ii) and 80.51(d)(2) (which pertains to the
agency's interpretive guides and regulatory resources for the public)
for the purposes of R3.
(c) License sales and other activities conducted for the primary
purpose of producing income. These activities include processes and
procedures directly related to the sale of items listed at Sec.
80.20(a).
(d) Activities, projects, or programs that promote or encourage
opposition to the regulated taking of fish, hunting, or the trapping of
wildlife.
[[Page 95614]]
(e) Activities or projects that do not provide public access when
access is a purpose of the funding or an objective of the award (see
Sec. 80.58).
Sec. 80.56 May a State fish and wildlife agency receive an award to
carry out part of a larger project?
Yes. A State fish and wildlife agency may receive an award to carry
out part of a larger project that uses funds unrelated to the award.
The part of the larger project funded by the award must:
(a) Result in an identifiable outcome consistent with the purposes
of the grant program;
(b) Be substantial in character and design (see Sec. 80.57);
(c) Meet the requirements of Sec. Sec. 80.130 through 80.137 for
any real property acquired under the award and any capital improvements
completed under the award; and
(d) Meet all other requirements of the grant program.
Sec. 80.57 How does a proposed project qualify as substantial in
character and design?
A proposed project qualifies as substantial in character and design
if it:
(a) Describes a need consistent with the Acts;
(b) States a purpose and sets objectives, both of which are based
on the need;
(c) Uses a planned approach, appropriate procedures, and accepted
principles of fish and wildlife conservation and management, research,
construction, wildlife- and fish-associated-recreation participation
and access, communication, education, or other eligible purposes; and
(d) Is cost effective.
Sec. 80.58 What are public access requirements for activities in an
approved award under the Wildlife Restoration or Sport Fish Restoration
programs?
(a) Public access is required for some eligible activities (see
Sec. Sec. 80.50 and 80.51) when supporting the purpose of an award.
(b) The State fish and wildlife agency has the authority, within
the purposes of the Acts, to establish parameters for public access and
may limit or restrict public access when the management of natural
resources and public access are not compatible. Additionally, the
agency may limit or restrict public access when the funded project or
facility is closed for business or temporarily closed due to an
emergency, repairs, construction, or as a safety precaution.
(c) When public access is required for projects and facilities that
are under the ownership or management control of a third party, the
State fish and wildlife agency, following its own State laws and
processes, must ensure a legally binding instrument setting forth the
terms and conditions, such as a subaward or third-party agreement, is
in place as follows:
(1) The instrument must be sufficient to ensure public access is
provided as expected by the agency and described in the approved award
from the Service.
(2) The third-party binding agreement must include or reference
agency approval for reasonable fees, any rules and requirements for
use, circumstances for temporary closure or reduction to public access,
duration of the agreement and any useful life expectations, and
procedures for any modifications to the agreement.
(3) The Service does not have authority to approve or reject a
State's third-party binding agreement but will include a special award
term and condition to require minimum standards and that third-party
binding agreements be maintained in agency award files and provided to
the Service, upon request, for all awards where funds under the Acts
are being used for renovating, constructing, operating, or maintaining
property that a third party owns or controls.
Subpart F--Allocation of Funds by an Agency
Sec. 80.60 What is the relationship between the Traditional Wildlife
Restoration Program, the Basic Hunter Education and Safety subprogram,
and the Enhanced Hunter Education and Safety program for acquiring land
for, expanding, or constructing public target ranges?
(a) The Target Practice and Marksmanship Training Support Act (Pub.
L. 116-17, March 10, 2019) amended the Wildlife Restoration Act (16
U.S.C. 669 et seq.) to include activities for acquiring land for,
expanding, or constructing public target ranges but does not authorize
any new sources of funding. The law became effective for States
beginning October 1, 2019.
(b) When a State fish and wildlife agency allocates funds to
activities for acquiring land for, expanding, or constructing public
target ranges under this law, it may apply a 90 percent Federal/10
percent non-Federal cost share and funds are available for obligation
up to 5 years, beginning October 1 of the year the funds first become
available. We abbreviate this funding method as ``90/10/5.''
(c) An agency may allocate annually apportioned funds for 90/10/5
activities from the Traditional Wildlife Restoration program (not to
exceed 10 percent), Basic Hunter Education and Safety subprogram (any
amount from 0 up to 100 percent), and/or Enhanced Hunter Education and
Safety program (any amount from 0 up to 100 percent) to projects for
acquiring land for, expanding, or constructing public target ranges.
There is no requirement for States to allocate any amount of funds to
90/10/5 activities.
(d) When using up to 10 percent of annually apportioned Traditional
Wildlife Restoration program funds for 90/10/5 activities, the funds
must be allocated to the designated subaccount and must be used only
for eligible 90/10/5 purposes. Some amount of available Enhanced Hunter
Education and Safety program funds, at least $1, must be combined with
the Traditional Wildlife Restoration program funds allocated to 90/10/5
activities.
(e) An agency must allocate funds to a 90/10/5 subaccount within
the FFY that funds are first apportioned. Funds allocated to a 90/10/5
subaccount during a prior FFY must remain in that 90/10/5 subaccount
for obligation during the period of availability and until expended.
(f) Acquiring land for, expanding, or constructing public target
ranges may also be accomplished, in total or when combined with 90/10/5
funds, using funds under the Basic Hunter Education and Safety
subprogram, the Enhanced Hunter Education and Safety program, or both,
but the agency must apply cost share and period of availability
according to table 1 to Sec. 80.61.
Sec. 80.61 What sources of funding in the Wildlife Restoration Act
may a State fish and wildlife agency use to support public target range
projects, and may funds from multiple sources be used in a single
award?
Table 1 to Sec. 80.61 describes the sources of funding available
for public target range projects and identifies their subaccount
number. The Service uses subaccounts in the Department of the
Interior's financial management system, the Financial and Business
Management System or FBMS, to administer the specific use requirements
for program and subprogram funding sources under the Acts. A State fish
and wildlife agency may combine funds from multiple sources within the
Act for eligible public target range activities. Your Regional Wildlife
and Sport Fish Restoration Program Office can provide technical
assistance on best practices for allocating costs to multiple eligible
funding sources.
[[Page 95615]]
Table 1 to Sec. 80.61
[BHE = Basic Hunter Education and Safety subprogram; EHE = Enhanced Hunter Education and Safety program; TWR = Traditional Wildlife Restoration program]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Eligible activities
Program/subprogram Funding source; method Period available for Cost share Conditions described in this
obligation part at:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Options for Funding Public Target Ranges
--------------------------------------------------------------------------------------------------------------------------------------------------------
Traditional Wildlife Restoration 16 U.S.C. 669c(b); 2 years............... 75 percent Federal/25 May use apportioned Sec. 80.50(a).
program (Subaccount 5222). apportioned. percent non-Federal. funds for
maintenance
activities at public
target ranges owned
or under the
management control
of the agency; may
allocate to 90/10/5
projects as
described for
subaccount 5252.
Traditional Wildlife Restoration 16 U.S.C. 669c(b); 5 years............... 90 percent Federal/10 May allocate up to 10 Sec. Sec.
program for Public Target Ranges allocated by an percent non-Federal. percent of TWR funds 80.50(a)(7) and
(90/10/5) (Subaccount 5252). agency from TWR funds. during the year 80.60.
apportioned to be
combined with at
least $1 of EHE
funds for acquiring
land for, expanding,
or constructing
public target ranges.
Basic Hunter Education and Safety 16 U.S.C. 669c(c); 2 years............... 75 percent Federal/25 May allocate up to Sec. 80.50(b)(1).
program for activities described apportioned. percent non-Federal. 100 percent of
at 16 U.S.C. 669g(b) (Subaccount apportioned funds
5221). for acquiring land
for, constructing,
operation of, and
maintenance for
public target
ranges; does not
have to be part of a
hunter education
program.
Activities for hunter recruitment 16 U.S.C. 669c(c); 2 years............... 75 percent Federal/25 May be used for Sec. 80.50(b)(2).
and recreational shooter assigned by an agency percent non-Federal. constructing public
recruitment as described at 16 from BHE funds. target ranges or
U.S.C. 669c(c)(4) (Subaccount other eligible
5221). public target range
activities that
directly support R3.
Basic Hunter Education and Safety 16 U.S.C. 669c(c); 5 years............... 90 percent Federal/10 May allocate up to Sec. Sec.
subprogram for Public Target allocated by an percent non-Federal. 100 percent of 80.50(b)(1)(ii)(E)
Ranges (90/10/5) (Subaccount 5251). agency from BHE funds. apportioned funds and 80.60.
for acquiring land
for, expanding, or
constructing a
public target range.
Enhanced Hunter Education and 16 U.S.C. 669h-1; 1 year................ 75 percent Federal/25 May allocate up to Sec. 80.50(c).
Safety program (Subaccount 5231). apportioned. percent non-Federal. 100 percent of
apportioned funds
for acquiring land
for, constructing,
developing, or
improving safety
features at public
target ranges.
Enhanced Hunter Education and 16 U.S.C. 669h-1; 5 years............... 90 percent Federal/10 May allocate up to Sec. Sec.
Safety program for Public Target allocated by an percent non-Federal. 100 percent of 80.50(c)(9) and
Ranges (90/10/5) (Subaccount 5241). agency from EHE funds. apportioned funds 80.60.
for acquiring land
for, expanding, or
constructing a
public target range.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sec. 80.62 What are eligible and ineligible 90/10/5 activities?
(a) The following are eligible 90/10/5 activities:
(1) Acquiring real property suitable or capable of being made
suitable for constructing or expanding public target ranges (see
subpart J of this part).
(2) Acquiring title to real property with an existing target range
when the acquisition will increase public access or includes
construction or expansion activities on the existing target range.
(3) Constructing a public target range on land owned or under
management control of the State fish and wildlife agency. Construction
may occur on land when title is held by a third party provided the
agency holds a lease or other third-party binding agreement under State
law that ensures the terms and conditions of the award will be met.
(4) Constructing or acquiring a mobile public target range.
(5) Expanding the physical footprint or configuration of an
existing public target range in a manner that increases range capacity
to accommodate more participants, provides additional range activities
or functions, or physically modifies to accommodate all participants,
regardless of ability. Examples include adding more lanes at a range,
adding structures that provide access that is compliant with the
Americans With Disabilities Act (42 U.S.C. 12101 et seq.), and
expanding the facility to provide new opportunities that did not exist
before, such as adding an archery range to a former firearm-only
facility.
(6) Coordinating 90/10/5 awards that directly support acquiring
land for, constructing, or expanding public target ranges through
necessary activities that
[[Page 95616]]
address planning, compliance, appraisals, engineering, and
administering a project.
(7) Auxiliary activities and amenities that support the primary
project and are necessary to the public's ability to fully utilize the
public target range. Examples include public restrooms, storage
facilities, protective bunkers and barriers, signs and markers, roads
and parking areas, and utilities.
(8) Improvements may be approved if they are needed to prevent a
public target range facility from becoming inoperable or suffering from
significant diminished capacity. Consult with your Regional Wildlife
and Sport Fish Restoration Program Office.
(9) Constructing or expanding public target range projects on
federally owned land.
(b) The following are ineligible 90/10/5 activities:
(1) Operations at a public target range.
(2) Maintenance at a public target range, unless necessary for
completing a project for constructing or expanding a public target
range.
(3) Construction that is n
[…truncated; see source link]Indexed from Federal Register on December 2, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.