Federal Register / Vol. 75, No. 111 / Thursday, June 10, 2010 / Proposed Rules 32877 

developed in a cooperative process with 

the States and the Flyway Councils. 

This process allows States to participate 

in the development of frameworks from 

which they will make selections, 

thereby having an influence on their 

own regulations. 

These rules do not have a substantial 

direct effect on fiscal capacity, change 

the roles or responsibilities of Federal or 

State governments, or intrude on State 

policy or administration. Therefore, in 

accordance with Executive Order 13132, 

these regulations do not have significant 

federalism effects and do not have 

sufficient federalism implications to 

warrant the preparation of a Federalism 

Assessment. 

List of Subjects in 50 CFR Part 20 

Exports, Hunting, Imports, Reporting 

and recordkeeping requirements, 

Transportation, Wildlife. 

The rules that eventually will be 

promulgated for the 2010–11 hunting 

season are authorized under 16 U.S.C. 

703–711, 16 U.S.C. 712, and 16 U.S.C. 

742 a–j. 

Dated: May 28, 2010 

Thomas L. Strickland, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. 2010–13956 Filed 6–9–10; 8:45 am] 

BILLING CODE S 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 80 

[Docket No. FWS–R9–WSR–2009–0088; 

91400–5110–POLI–7B; 91400–9410–POLI– 

7B] 

RIN 1018–AW65 

Financial Assistance: Wildlife 

Restoration, Sport Fish Restoration, 

Hunter Education and Safety 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service, propose changes in the 

regulations governing the Wildlife 

Restoration, Sport Fish Restoration, and 

Hunter Education and Safety (Enhanced 

Hunter Education and Safety) financial 

assistance programs. We conducted 

rulemaking 2 years ago to amend these 

regulations, and based on experience 

gained since then, we propose to adopt 

two recommendations that we received 

in response to the prior proposed rule 

and to modify three provisions from the 

subsequent final rule. We also propose 

to update the regulations to reflect 

changes in law, regulation, policy, 

technology, and practice during the past 

25 years. In addition, this proposed rule 

simplifies specific requirements of the 

establishing authorities of the Wildlife 

Restoration and Sport Fish Restoration 

programs and clarifies terms in those 

authorities as well as terms generally 

used in grant administration. Finally, 

this proposed rule organizes the 

regulations to follow the life cycle of a 

grant and rewords and reformats the 

regulations following Federal plain 

language policy and current rulemaking 

guidance. 

DATES: We will accept comments 

received or postmarked on or before 

August 9, 2010. 

ADDRESSES: You may submit comments 

by one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments to 

Docket No. FWS–R9–WSR–2009–0088. 

• U.S. mail or hand-delivery: Public 

Comments Processing, Attn: RIN 1018– 

AW65; Division of Policy and Directives 

Management; U.S. Fish and Wildlife 

Service; 4401 N. Fairfax Drive, Suite 

222; Arlington, VA 22203. 

We will not accept e-mail or faxes. We 

will post all public comments on 

http://www.regulations.gov. This 

generally means that we will post any 

personal information you provide us 

(see the Public Comments section below 

for more information). 

FOR FURTHER INFORMATION CONTACT: 

Joyce Johnson, Wildlife and Sport Fish 

Restoration Program, Division of Policy 

and Programs, U.S. Fish and Wildlife 

Service, 703–358–2156. 

SUPPLEMENTARY INFORMATION: 

Background 

The U.S. Department of the Interior’s 

(DOI) Fish and Wildlife Service 

(Service) manages or co-manages 55 

financial assistance programs, 19 of 

which are managed, in whole or in part, 

by the Service’s Wildlife and Sport Fish 

Restoration Program. This proposed rule 

would revise title 50, part 80, of the 

Code of Federal Regulations (CFR), 

which is ‘‘Administrative Requirements, 

Pittman-Robertson Wildlife Restoration 

and Dingell-Johnson Sport Fish 

Restoration Acts.’’ The primary users of 

these regulations are the fish and 

wildlife agencies of the 50 States, the 

Commonwealths of Puerto Rico and the 

Northern Mariana Islands, the District of 

Columbia, and the territories of Guam, 

the U.S. Virgin Islands, and American 

Samoa. We use ‘‘State’’ or ‘‘States’’ in this 

document to refer to any or all of these 

jurisdictions except the District of 

Columbia for purposes of the PittmanRobertson Wildlife Restoration Act and 

the two grant programs and one 

subprogram under the Act because the 

Act does not authorize funding for the 

District. The term, ‘‘the 50 States,’’ 

applies only to the 50 States of the 

United States. It does not include the 

Commonwealths of Puerto Rico and the 

Northern Mariana Islands, the District of 

Columbia, or the territories of Guam, the 

U.S. Virgin Islands, and American 

Samoa. These regulations tell States 

how they may: (a) Use revenues from 

hunting and fishing licenses; (b) receive 

annual apportionments from the Federal 

Aid to Wildlife Restoration Fund and 

the Sport Fish Restoration and Boating 

Trust Fund; (c) receive financial 

assistance from the Wildlife Restoration 

program, the Basic Hunter Education 

and Safety subprogram, and the 

Enhanced Hunter Education and Safety 

program; and (d) receive financial 

assistance from the Sport Fish 

Restoration program, the Recreational 

Boating Access subprogram, the Aquatic 

Resources Education subprogram, and 

the Outreach and Communications 

subprogram. These programs provide 

financial assistance to State fish and 

wildlife agencies to: (a) Restore or 

manage wildlife and sport fish; (b) 

provide hunter-education, hunterdevelopment, and hunter-safety 

programs; (c) provide recreational 

boating access; (d) enhance the public’s 

understanding of water resources, 

aquatic-life forms, and sport fishing; and 

(e) develop responsible attitudes and 

ethics toward the aquatic environment. 

The Catalog of Federal Domestic 

Assistance at http://www.cfda.gov 

describes these programs under 15.611, 

15.605, and 15.626. 

The Pittman-Robertson Wildlife 

Restoration Act, as amended (50 Stat. 

917; 16 U.S.C. 669–669k), and the 

Dingell-Johnson Sport Fish Restoration 

Act, as amended (64 Stat. 430; 16 U.S.C. 

777–777n, except 777e–1 and g–1), 

established the programs affected by 

this proposed rule in 1937 and 1950 

respectively. We refer to these acts in 

this document and in the proposed rule 

as ‘‘the Acts.’’ They established a 

hunting- and angling-based user-pay 

and user-benefit system in which the 

State fish and wildlife agencies of the 50 

States, the Commonwealths, and the 

territories receive formula-based 

funding from a continuing 

appropriation. The District of Columbia 

also receives funding, but only under 

the Dingell-Johnson Sport Fish 

Restoration Act. The Pittman-Robertson 

Wildlife Restoration Act does not 

authorize funding for the District of 


cprice-sewell on DSK8KYBLC1PROD with PROPOSALS-1
32878 Federal Register / Vol. 75, No. 111 / Thursday, June 10, 2010 / Proposed Rules 

Columbia. Industry partners pay excise 

taxes on equipment and gear 

manufactured for purchase by hunters, 

anglers, boaters, archers, and 

recreational shooters. The Service 

distributes these funds to the fish and 

wildlife agencies of the States that 

contribute matching funds, generally 

derived from hunting and fishing 

license sales. In fiscal year 2009, the 

States and other eligible jurisdictions 

received $336 million through the 

Wildlife Restoration and Enhanced 

Hunter Education and Safety programs 

and $404 million through the Sport Fish 

Restoration program. 

Revisions of 50 CFR 80 during the 

past 25 years include one section of 50 

CFR 80 in 1987, another section in 1989, 

and two sections in 2001. We revised 

the license-certification section in 2008 

to address the greater number of license 

choices that many States have offered 

hunters and anglers in recent years. We 

also revised other sections in 2008 to: 

(a) Comply with Federal policy on plain 

language and writing style, (b) remove 

subject matter addressed adequately in 

other grant regulations, or (c) correct 

obsolete references or legal 

requirements. The focus of all revisions 

since 1987 was on specific issues. We 

have not systematically reviewed and 

revised 50 CFR 80 since the early 

1980’s, so the regulations at this part do 

not fully reflect the following laws and 

policies: 

(a) The Wildlife and Sport Fish 

Restoration Programs Improvement Act 

of 2000, Nov. 1, 2000, (Pub. L. 106–408). 

This amendment of the Acts authorized 

the Enhanced Hunter Education and 

Safety program. 

(b) Public Law 98–454, title VI, 

section 601(b), Oct. 5, 1984. This law 

states that a Federal awarding agency 

must waive any required match under 

$200,000 for grants to Guam, the 

Northern Mariana Islands, the U.S. 

Virgin Islands, and American Samoa. 

(c) 43 CFR 12.43, Uniform 

Administrative Requirements for Grants 

and Cooperative Agreements to State 

and Local Governments, Mar. 11, 1988. 

This section of the CFR defines 

‘‘obligations’’ in the context of a grantee 

incurring costs under a grant. This 

definition does not apply to 

‘‘obligations’’ in the context of a Federal 

obligation of funds, which involves the 

awarding agency making funds available 

for a grant, the submission of an 

application, and the issuance and 

acceptance of an award under specified 

terms and conditions. 

(d) OMB Circular A–102, Grants and 

Cooperative Agreements with State and 

Local Governments, Oct. 14, 1994, and 

amended Aug. 29, 1997. This policy 

requires us to treat land acquisition and 

development, in effect, as a phase of 

construction for the purpose of a grantee 

submitting an assurance statement with 

the Application for Federal Assistance. 

(e) Department of the Interior Manual, 

505 DM 2, ‘‘Procurement Contracts, 

Grant and Cooperative Agreements,’’ 

Jan. 9, 2008. This DOI manual chapter 

states that a grant-funded project could 

involve amounts from more than one 

program or appropriation when 

different relationships would otherwise 

be appropriate and beneficial for 

different parts of the project. 

(f) Service Manual chapter 522 FW 4, 

‘‘Comprehensive Management System 

Grants,’’ Nov. 30, 2004. This FWS 

manual chapter guides the award and 

operation of a Comprehensive 

Management System grant, which the 

establishing authorities authorize as an 

alternative to project-by-project grants. 

(g) Service Manual chapter 522 FW 

16, ‘‘Preagreement Costs,’’ Oct. 13, 2005. 

This FWS manual chapter establishes 

conditions under which a grantee may 

incur costs before the effective date of 

a grant. It incorporates 

recommendations of a joint task force of 

Federal and State officials. 

(h) Service Manual chapter 522 FW 

19, ‘‘Program Income from Federal 

Assistance Grants,’’ Feb. 20, 2008. This 

chapter establishes that States may: (a) 

Select the deduction or addition 

methods of applying program income to 

Federal and non-Federal outlays, and (b) 

reduce program income by an amount 

equal to the costs of generating it. The 

chapter gives examples of the costs of 

generating program income. It 

establishes criteria under which a 

Regional Director may approve an 

applicant’s request to use program 

income as match. It also requires grant 

agreements to state that income earned 

by the grantee after the grant period 

from grant-supported activities will be 

treated as: (a) License revenue and used 

to support the administration of the 

State fish and wildlife agency, or (b) 

additional funding for purposes 

consistent with the grant or program 

that generated the income. The chapter 

also allows the grantee to request that 

grant agreements require that 

subgrantees account for program income 

earned after the grant period. Finally, 

the chapter gives examples of program 

income and states that the Service does 

not treat cooperative farming and 

grazing arrangements as program 

income if the State fish and wildlife 

agency designs the farming or grazing to 

advance its fish or wildlife management 

objectives. Service Manual chapter 522 

FW 16 is based on recommendations of 

a joint task force of Federal and State 

officials. 

(i) Director’s guidance on ‘‘Policy— 

Federal Aid Timber Sales,’’ June 6, 2002. 

This guidance applies a Dec. 5, 2000, 

Solicitor’s Opinion to the Wildlife and 

Sport Fish Restoration program 

nationwide. That Opinion stated that 

timber revenue from wildlife 

management practices on lands bought 

under Wildlife Restoration or Sport Fish 

Restoration grants is program income 

instead of proceeds from the sale of real 

property. 

(j) The Presidential memorandum of 

June 1, 1998, ‘‘Plain Language in 

Government Writing.’’ This 

memorandum requires the use of plain 

language in all proposed and final 

rulemaking documents published in the 

Federal Register. 

Updates to the Regulations 

We have arranged the sections of the 

proposed rule into subparts of related 

subject matter. The gaps in section 

numbers between each subpart allow 

the addition of new sections in the 

future. We have summarized the 

changes in the proposed rule by section 

or by group of sections, and crossreferenced proposed section numbers to 

the corresponding numbers in the 

currently published version of 50 CFR 

80, as amended by the final rule 

published in the Federal Register at 73 

FR 43120 on July 24, 2008. We are 

referring to the 2008 version of 50 CFR 

80 when we use the term ‘‘current’’ 

before a section number or before a 

reference to 50 CFR 80. 

Subpart A—General 

Section 80.1 What does this part do? 

This proposed section does not have 

a corresponding section in the current 

regulations. It is a needed introduction 

to a part that covers subjects as diverse 

as (a) hunting and fishing license 

revenue, and (b) financial assistance 

under the three grant programs and four 

subprograms authorized by the Acts. 

Section 80.2 What terms do I need to 

know? 

This proposed section defines the 

following terms that are not in the 

corresponding ‘‘Definitions’’ section of 

the current § 80.1: Agency, angler, 

capital improvement, comprehensive 

management system grant, construction, 

diversion, grant, grantee, match, projectby-project grant, real property, sport 

fish, subaccount, useful life, and 

wildlife. We defined ‘‘agency’’ as the 

State fish and wildlife agency. We used 

this shorter form in headings and in 

most places in the text to make the 


cprice-sewell on DSK8KYBLC1PROD with PROPOSALS-1
Federal Register / Vol. 75, No. 111 / Thursday, June 10, 2010 / Proposed Rules 32879 

headings and text easier to read. 

However, not all readers will consult 

the definitions in § 80.2 before reading 

the sections that are of interest to them. 

To avoid any misunderstanding, we 

used the longer ‘‘State fish and wildlife 

agency’’ at the first opportunity in the 

text of each section and in places where 

clarity on this issue was especially 

important. 

We defined ‘‘construction’’ to include 

land acquisition and the clearing and 

reshaping of land as types or phases of 

construction. This is consistent with 

OMB Circular A–102, Grants and 

Cooperative Agreements with State and 

Local Governments, which treats land 

acquisition and development as 

construction for purposes of grantees’ 

submitting an assurance statement at the 

time of application. 

We limited the definition of ‘‘wildlife’’ 

to birds and mammals, which have been 

the focus of this program since passage 

of the Pittman-Robertson Wildlife 

Restoration Act in 1937. The Act was 

amended in 2000 to include the Wildlife 

Conservation and Restoration program 

and accommodated this program by 

defining ‘‘wildlife’’ more broadly as ‘‘any 

species of wild free-ranging fauna 

including fish.’’ The more limited 

definition in the proposed section is a 

common element in all State definitions 

of ‘‘wildlife.’’ We add this more 

restrictive definition to 50 CFR 80 to 

clarify that the broader definition in the 

Act addresses the full scope of the 

Wildlife Conservation and Restoration 

program. 

The proposed section deletes 

‘‘common horsepower’’ because the term 

occurs only in the current § 80.24, 

‘‘Recreational boating access facilities.’’ 

The proposed § 80.51(b)(1), which 

would replace the current § 80.24, in 

part, uses the definition of ‘‘common 

horsepower’’ instead of the term. 

The proposed § 80.2 also deletes 

‘‘resident angler’’ because it occurs only 

in the proposed § 80.66, so we defined 

the term in that proposed section. We 

deleted ‘‘Wildlife and Sport Fish 

Restoration Program funds’’ from the 

proposed § 80.2 because the proposed 

rule does not use the term. 

Subpart B—State Fish and Wildlife 

Agency Eligibility 

Section 80.10 Who is eligible to 

receive the benefits of the Acts? 

This proposed section restates the 

current § 80.2, ‘‘Eligibility,’’ and § 80.3, 

‘‘Assent legislation.’’ 

Section 80.11 How does a State 

become ineligible to receive the benefits 

of the Acts? 

This proposed section restates, in 

part, the current § 80.4, ‘‘Diversion of 

license fees.’’ It is consistent with the 

remedies for noncompliance at 43 CFR 

12.83, ‘‘Enforcement.’’ 

Section 80.12 Does an agency have to 

confirm that it wants to receive an 

annual apportionment of funds? 

This proposed section restates the 

current § 80.9, ‘‘Notice of desire to 

participate.’’ This requirement is based 

on a provision of the Pittman-Robertson 

Wildlife Restoration Act. The proposed 

section would no longer require States 

to notify the Service within 60 days of 

receiving a certificate of apportionment 

that it wants to participate in the 

benefits of the Acts. It would require a 

60-day notice only in the unlikely event 

that the State does not want to receive 

the annual apportionment of funds. 

Subpart C—License Revenue 

Section 80.20 What does revenue from 

hunting and fishing licenses include? 

This proposed section clarifies that 

license revenue includes fees for access 

to (a) property acquired or constructed 

with license revenue, or (b) a 

recreational opportunity, product, or 

commodity derived from property 

acquired, managed, maintained, or 

produced with license revenue. The 

proposed section includes animal 

products among the examples of 

personal property. This would correct 

the listing of animal products among 

examples of real property in the current 

§ 80.4, ‘‘Diversion of license fees.’’ We 

clarify that only mineral rights and 

standing timber are real property, but 

become personal property when the 

owner extracts the minerals or harvests 

the timber. The clarification on timber 

is based on a Dec. 5, 2000, Solicitor’s 

Opinion on Federal Aid Timber Sales. 

We also clarify in the proposed section 

that State property acquired or 

produced with license revenue could 

include intellectual property such as 

patents and copyrights. 

Section 80.21 What if a State diverts 

license revenue from the control of its 

fish and wildlife agency? 

This proposed section restates the 

opening sentence of the current § 80.4, 

‘‘Diversion of license fees,’’ and the 

current § 80.4(c) and (d). 

Section 80.22 What must a State do to 

resolve a declaration of diversion? 

This proposed section corresponds to 

and expands on the current § 80.4(a)(3), 

‘‘Diversion of license fees,’’ and 

§ 80.4(d). The proposed section 

mentions for the first time that an 

agency may receive the market rental 

rate of the diverted property during the 

period of diversion as an alternative to 

the actual income earned. 

Section 80.23 Does a declaration of 

diversion affect a previous Federal 

obligation of funds? 

This proposed section restates the 

current § 80.4(e) ‘‘Diversion of license 

fees.’’ 

Subpart D—License Certification 

Section 80.30 Why must an agency 

certify the number of paid license 

holders? 

This proposed section restates and 

expands part of the first sentence of the 

current § 80.10(a), ‘‘State certification of 

licenses.’’ 

Section 80.31 How does an agency 

certify the number of paid license 

holders? 

This proposed section restates the 

current § 80.10(a)(3), ‘‘State certification 

of licenses,’’ and expands on the current 

§ 80.10(c). The proposed section would 

require for the first time that if a State 

uses statistical sampling to eliminate 

multiple counting of single individuals 

in the annual certification of the number 

of people who hold paid licenses, it 

must sample: (a) Every 5 years, or (b) 

when the State changes the structure of 

its licensing system in a way that could 

affect the number of people who hold 

paid licenses, whichever comes first. 

Section 80.32 What is the certification 

period? 

This proposed section restates the 

current § 80.10(a)(1) and (2), ‘‘State 

certification of licenses.’’ 

Section 80.33 How does an agency 

decide who to count as paid license 

holders in the annual certification? 

This proposed section restates the 

current § 80.10(b)(1)–(6), ‘‘State 

certification of licenses,’’ but we made 

several significant changes. We state 

clearly in the proposed § 80.33(a)(1) that 

an agency must count a person who has 

a paid license to hunt or fish even if that 

person is not required to have a paid 

license or is unable to hunt or fish. This 

reflects the view that any paid license 

holder meets the requirements of the 

Acts and that license fees support the 

State fish and wildlife agency even if 

the license holder does not engage in 

the activity. We added a requirement at 

the proposed § 80.33(a) that the State 

fish and wildlife agency may count a 

person who has a paid license only if 


cprice-sewell on DSK8KYBLC1PROD with PROPOSALS-1
32880 Federal Register / Vol. 75, No. 111 / Thursday, June 10, 2010 / Proposed Rules 

the issue of the license in the license 

holder’s name is verifiable in State 

records. 

In the proposed § 80.33(a)(4) and (b), 

we replaced ‘‘State’’ in the current 

§ 80.10(b)(2) with ‘‘State fish and 

wildlife agency.’’ This would allow a 

State to use general-revenue funds to 

offset lost revenues from hunting and 

fishing licenses issued free of charge to 

veterans and other categories of license 

holders. The State could then count the 

individuals holding these licenses as 

paid license holders for annual 

certification purposes under certain 

conditions. We propose this change 

based on a recommendation of a joint 

task force of Federal and State officials. 

In the proposed § 80.33(a)(4), we 

changed the ‘‘period in which the 

license was purchased,’’ which is the 

language of the current § 80.10(b)(3), to 

‘‘period in which the license first 

becomes valid.’’ This change would 

more accurately reflect the actual 

participation in a hunting or fishing 

season by counting those who buy a 

license before the opening of a season. 

The current § 80.10(b)(4)(i), reads 

‘‘The net revenue from the [multiyear] 

license is in close approximation with 

the number of years in which the 

license is legal.’’ We changed this in the 

proposed section at § 80.33(b) to read, 

‘‘The State fish and wildlife agency must 

receive net revenue from the multiyear 

license of at least $1 for each year in 

which the license is valid.’’ This change 

applies the same net revenue standard 

to multiyear licenses as applies to 

single-year licenses. We propose this 

change based on a recommendation of a 

joint task force of Federal and State 

officials. 

We changed ‘‘legal’’ to ‘‘valid’’ in 

§ 80.33(b) for the sake of consistency 

with § 80.33(a)(4). We added lifeexpectancy tables and mortality tables 

as potential techniques to determine if 

a lifetime-license holder remains a 

license holder in the proposed 

§ 80.33(b)(2), which corresponds to the 

current § 80.10(b)(4)(ii). 

Section 80.34 May an agency count 

license holders in the annual 

certification if the agency receives funds 

from the State to cover their license 

fees? 

This proposed section does not have 

a corresponding section in the current 

50 CFR 80. It establishes the conditions 

under which the State fish and wildlife 

agency may count a license holder if the 

State uses general-revenue funds to 

offset lost revenues from hunting and 

fishing licenses issued free of charge to 

veterans or another category of license 

holder. This proposed section is linked 

to language in the proposed § 80.33(a)(4) 

and (b), which we discuss above. 

Section 80.35 How does an agency 

calculate net revenue from a license? 

This proposed section restates and 

expands on the current § 80.10(b)(2), 

‘‘State certification of licenses,’’ by 

adding examples of the costs of issuing 

licenses to include automated licensesystem costs and licensing-unit 

personnel costs. 

Section 80.36 What must an agency do 

if it becomes aware of errors in its data? 

This proposed section does not have 

a corresponding section in the current 

regulations, but the current § 80.10(d), 

‘‘State certification of licenses,’’ 

indirectly acknowledges the possibility 

that an agency may submit incorrect 

certified data. This proposed section 

establishes a 90-day window for the 

State fish and wildlife agency to submit 

revised certified data after it becomes 

aware of errors in its data. 

Section 80.37 May the Service 

recalculate an apportionment if an 

agency submits revised data? 

This proposed section restates and 

expands on the current § 80.10(d), ‘‘State 

certification of licenses.’’ It explicitly 

states that the Service may recalculate 

an apportionment if it receives revised 

certified data on license holders before 

the Director approves the final 

apportionment. 

Section 80.38 May the Director correct 

a Service error in apportioning funds? 

This proposed section restates the last 

sentence of the current § 80.10(d), ‘‘State 

certification of licenses.’’ 

Subpart E—Eligible Activities 

Section 80.50 What activities are 

eligible for funding under the PittmanRobertson Wildlife Restoration Act? 

Section 80.51 What activities are 

eligible for funding under the DingellJohnson Sport Fish Restoration Act? 

These proposed sections restate and 

expand on the current § 80.5, ‘‘Eligible 

undertakings,’’ § 80.15(f)(1), ‘‘Allowable 

costs,’’ and § 80.24, ‘‘Recreational 

boating access facilities.’’ They list 

comprehensively the eligible activities 

for each program and subprogram and 

use standard terms and parallel 

construction to describe these activities 

in greater detail. In part, the proposed 

§ 80.51 responds to several 

recommendations that we received on 

the proposed rule to amend 50 CFR 80 

that was published in the Federal 

Register at 73 FR 24523 on May 5, 2008. 

These recommendations stated that we 

should explicitly list outreach and 

communications and aquatic resource 

education as eligible activities. The 

proposed § 80.51 does not include the 

following language of the current 

§ 80.5(b)(2): ‘‘Additional funds resulting 

from expansion of the Sport Fish 

Restoration Program must be added to 

existing State fishery program funds 

available from traditional sources and 

not as a substitute therefor.’’ This 

language became part of the regulations 

after enactment of a significant 

expansion of the sources of funding for 

the Dingell-Johnson Sport Fish 

Restoration Act about 25 years ago. We 

did not include it in the proposed rule 

because of its weak legislative authority 

and the difficulty of enforcing it. 

Section 80.52 What activities are 

ineligible for funding? 

The proposed § 80.52(a) and (b) 

restate and broaden the scope of two 

ineligible activities in the current § 80.6, 

‘‘Prohibited activities.’’ The proposed 

§ 80.52(c), ‘‘Activities conducted for the 

primary purpose of producing income,’’ 

restates a similar prohibition at the 

current § 80.14(c), ‘‘Application of 

Wildlife and Sport Fish Restoration 

Program funds.’’ The newly proposed 

ineligible activity at § 80.52(d) reads 

‘‘activities, projects, or programs that 

promote or encourage opposition to 

regulated taking of fish, hunting, or the 

trapping of wildlife.’’ This language is 

based on the intent of the drafters of the 

Wildlife and Sport Fish Restoration 

Programs Improvement Act of 2000, 

which amended the Pittman-Robertson 

Wildlife Restoration Act and the 

Dingell-Johnson Sport Fish Restoration 

Act. The Improvement Act applied 

similar language to the Multistate 

Conservation Grant program. 

Section 80.53 Are administrative costs 

for State central services eligible 

expenses? 

This proposed section closely follows 

the language of the current § 80.15(e), 

‘‘Allowable costs,’’ but it does not 

include the unnecessary last sentence, 

which reads, ‘‘Each State has a State 

Wide Cost Allocation Plan that 

describes approved allocations of 

indirect costs to agencies and programs 

within the State.’’ 

Section 80.54 May an agency receive a 

grant to carry out part of a larger 

project? 

This proposed section does not have 

a corresponding section in the current 

regulations. It states conditions under 

which a grant may carry out part of a 

larger project. These conditions are 

based on advice from the Department of 


cprice-sewell on DSK8KYBLC1PROD with PROPOSALS-1
Federal Register / Vol. 75, No. 111 / Thursday, June 10, 2010 / Proposed Rules 32881 

the Interior’s Office of the Solicitor. It is 

also consistent with the Department of 

the Interior Manual, 505 DM 2.18, 

‘‘Procurement Contracts, Grants, and 

Cooperative Agreements,’’ issued Jan. 9, 

2008. 

Section 80.55 How does a proposed 

project qualify as substantial in 

character and design? 

This proposed section corresponds to 

the current § 80.13, ‘‘Substantiality in 

character and design.’’ The proposed 

section applies to both projects and 

comprehensive management systems as 

a result of the definition of ‘‘project’’ in 

the proposed § 80.2. 

Subpart F—Allocation of Funds by an 

Agency 

Section 80.60 What is the relationship 

between the Basic Hunter Education 

and Safety subprogram and the 

Enhanced Hunter Education and Safety 

program? 

This proposed section does not have 

a corresponding section in the current 

regulations. It clarifies for the first time 

in regulation the complex relationship 

between the Basic Hunter Education 

and Safety subprogram and the 

Enhanced Hunter Education and Safety 

subprogram, which was authorized by 

the Wildlife and Sport Fish Restoration 

Programs Improvement Act of 2000. 

Section 80.61 What requirements 

apply to funds for the Recreational 

Boating Access subprogram? 

This proposed section corresponds, in 

part, with the current § 80.24, 

‘‘Recreational boating access facilities.’’ 

The proposed § 80.61(b) requires that 

Regional allocations average 15 percent 

over a 5-year period. Although this 

provision is not in the current § 80.24, 

the Dingell-Johnson Sport Fish 

Restoration Act requires it. The 

proposed § 80.61 also introduces a new 

requirement to ensure that Regional 

Offices will have information in time to 

ensure that the Regional allocation will 

average 15 percent over a 5-year period. 

It reads: ‘‘A State must apply to use 

these allocated funds by the end of the 

fourth consecutive Federal fiscal year 

after the Federal fiscal year in which the 

funds first became available for 

allocation.’’ The current § 80.24 states, 

‘‘Any portion of a State’s 15-percent set 

aside for the above purposes that remain 

unexpended or unobligated after 5 years 

must revert to the Service for 

apportionment among the States.’’ The 

proposed § 80.61(g) does not refer to an 

expenditure of grant funds as does the 

current § 80.24. It is unnecessary to 

include such a reference because: (a) a 

Federal obligation must precede an 

agency’s expenditure, or (b) the agency’s 

expenditure may be the last step in 

completing a Federal obligation, thus 

occurring simultaneously with the 

obligation. 

Section 80.62 What limitations apply 

to spending on the Aquatic Resource 

Education and Outreach and 

Communications subprograms? 

This proposed section corresponds in 

part to the current § 80.15(f), ‘‘Allowable 

Costs.’’ The proposed section corrects 

the current section’s incorrect reference 

to the two subprograms as a single 

‘‘program.’’ 

Section 80.63 Does an agency have to 

allocate costs in multipurpose projects 

and facilities? 

Section 80.64 How does an agency 

allocate costs in multipurpose projects 

and facilities? 

The proposed § 80.63 and § 80.64 

correspond to the current § 80.15(d), 

‘‘Allowable costs.’’ We added the 

following language in § 80.64, ‘‘The 

agency must describe the method used 

to allocate costs in multipurpose 

projects or facilities in the project 

statement included in the grant 

application.’’ 

Section 80.65 Does an agency have to 

allocate funds between marine and 

freshwater fisheries projects? 

This proposed section corresponds, in 

part, to the current § 80.23, ‘‘Allocation 

of funds between marine and freshwater 

fishery projects.’’ The proposed section 

includes the new language, ‘‘The 

subprograms authorized by the DingellJohnson Sport Fish Restoration Act do 

not have to allocate funding in the same 

manner as long as the State fish and 

wildlife agency equitably allocates 

Dingell-Johnson Sport Fish Restoration 

funds as a whole between marine and 

freshwater fisheries.’’ 

Section 80.66 What requirements 

apply to the allocation of funds between 

marine and freshwater fisheries 

projects? 

This proposed section corresponds, in 

part, to the current § 80.23, ‘‘Allocation 

of funds between marine and freshwater 

fishery projects.’’ The proposed section 

defines a resident angler as ‘‘one who 

fishes for recreational purposes in the 

same State where he or she maintains 

legal residence.’’ The current regulations 

include this term in the Definitions 

section, but the definition leaves out 

‘‘for recreational purposes.’’ The 

proposed section adds the following: 

‘‘(c) * * * Agencies must use the 

National Survey of Fishing, Hunting, 

and Wildlife-associated Recreation or 

another statistically reliable survey or 

technique approved by the Director for 

this purpose. (d) If a State uses 

statistical sampling, it must sample at 

the earlier of the following: (1) Five 

years after the last statistical sample, or 

(2) The first certification period affected 

by any change in the licensing system 

that could affect the number of people 

who hold a paid license to fish.’’ We did 

not include in the proposed § 80.66 this 

language from the current § 80.23 

because it is unnecessary, ‘‘Ongoing 

marine project costs can be applied 

toward the State’s saltwater allocation.’’ 

Section 80.67 May an agency finance 

an activity from more than one annual 

apportionment? 

Section 80.68 What requirements 

apply to financing an activity from more 

than one annual apportionment? 

The proposed § 80.67 and § 80.68 

correspond to the current § 80.25, 

‘‘Multiyear financing under the DingellJohnson Sport Fish Restoration 

program,’’ but the proposed sections 

broaden the authorization of multiyear 

financing. They also extend the 

multiyear-financing option to projects 

under the Pittman-Robertson Wildlife 

Restoration Act. The proposed § 80.68(c) 

changes the current § 80.25 by allowing 

interest and other financing costs 

subject to restrictions in the Federal 

Cost Principles. 

Subpart G—Application for a Grant 

Section 80.80 How does an agency 

apply for a grant? 

Section 80.81 What must an agency 

submit when applying for a 

comprehensive management system 

grant? 

Section 80.82 What must an agency 

submit when applying for a project-byproject grant? 

These proposed sections correspond 

to the current and less comprehensive 

§ 80.11, ‘‘Submission of proposals.’’ The 

proposed sections include detailed 

information on the information that 

grantees must include in the application 

packages for comprehensive 

management system grants and projectby-project grants. This information is 

based on information in: (a) Service 

Manual Chapter 522 FW 4, 

‘‘Comprehensive Management System 

Grant;’’ (b) OMB Circular A–102, Grants 

and Cooperative Agreements with State 

and Local Governments, Section (c)(5); 

(c) the current 50 CFR 80.25(b)(3) on 

multiyear financing; and (d) Service 

Manual chapter 522 FW 19, ‘‘Program 

Income from Federal Assistance Grants.’’ 


cprice-sewell on DSK8KYBLC1PROD with PROPOSALS-1
32882 Federal Register / Vol. 75, No. 111 / Thursday, June 10, 2010 / Proposed Rules 

Section 80.83 What is the Federal 

share of allowable costs? 

This proposed section corresponds, in 

part, to the current § 80.12, ‘‘Cost 

sharing.’’ It changes the current 

regulations by authorizing the Regional 

Director to waive the 10-percent 

minimum Federal share of allowable 

costs if an agency requests a waiver and 

provides compelling reasons to justify 

it. 

Section 80.84 How does the Service 

establish the non-Federal share of 

allowable costs? 

This proposed section does not have 

a corresponding section in the current 

50 CFR 80. It is based on the 

requirements of the Acts and 48 U.S.C. 

1469a. 

Section 80.85 What requirements 

apply to match? 

The proposed §§ 80.85(a) and (b)(1) 

correspond in part to the current 

§ 80.12, ‘‘Cost sharing.’’ The proposed 

§ 80.85(b)(2) is new, but it is consistent 

with the Federal Cost Principles. The 

proposed § 80.85(c) is based upon 

Service policy issued in Service Manual 

chapter 522 FW 17, which in turn is 

based on a 2005 recommendation of a 

joint task force of Federal and State 

officials. 

Subpart H—General Grant 

Administration 

Section 80.90 What are the 

responsibilities of an agency? 

This proposed section corresponds to 

and closely follows the language of the 

current § 80.18, ‘‘Responsibilities.’’ 

Section 80.91 What is a Federal 

obligation of funds and how does it 

occur? 

This proposed section does not have 

a corresponding section in the current 

regulations. We proposed this section 

for the following reasons: 

(a) The nature of a Federal obligation 

is not defined in any regulations or 

policies of the Wildlife and Sport Fish 

Restoration program; 

(b) Both State and Federal employees 

have at times expressed different 

understandings of what a Federal 

obligation is. 

(c) Some of the confusion is due to a 

parallel and related process, in which 

grantees obligate funds available to 

them under a grant. These ‘‘grantee 

obligations’’ are discussed at 43 CFR 

12.43 and 43 CFR 12.902 in the 

definitions of ‘‘obligations,’’ 

‘‘unliquidated obligations,’’ and 

‘‘unobligated balance.’’ We do not define 

or discuss grantee obligations. 

(d) We use the term ‘‘obligation’’ or 

‘‘obligate’’ in the proposed § 80.60, 

§ 80.61, and § 80.92. 

Section 80.92 How long are funds 

available for a Federal obligation? 

This proposed section restates and 

corrects the current § 80.8, ‘‘Availability 

of funds,’’ which does not take into 

account the 1-year availability of funds 

under the Enhanced Hunter Education 

and Safety program or the 5-year 

availability of funds in the Recreational 

Boating Access subprogram. 

Section 80.93 When may an agency 

incur costs under a grant? 

This proposed section corresponds, in 

part, to the current § 80.15(c), 

‘‘Allowable costs.’’ It leads to the subject 

of preagreement costs in the proposed 

§ 80.94. 

Section 80.94 May an agency incur 

costs before the effective date of the 

grant period? 

This proposed section corresponds, in 

part, to the current § 80.15(c), 

‘‘Allowable costs,’’ but describes the 

conditions under which the State fish 

and wildlife agency may incur 

preagreement costs. The proposed 

section is based on: (a) Service Manual 

Chapter 522 FW 16, ‘‘Preagreement 

Costs,’’ which is based on a 2004 

recommendation of a joint task force of 

Federal and State officials, and (b) the 

Federal Cost Principles in OMB Circular 

A–87. The proposed section goes 

beyond 522 FW 16 by allowing the 

completion of a proposed project before 

the grant’s effective date as long as the 

grantee meets certain conditions. 

Section 80.95 How does an agency 

receive Federal grant funds? 

This proposed section corresponds to 

and expands on the current § 80.16, 

‘‘Payments.’’ It states that under certain 

circumstances a grantee may receive an 

advance of funds. An advance of funds 

is authorized in 43 CFR 12.61, and the 

Acts do not prohibit it. The current 

§ 80.16 also limits the means of 

requesting payment. The proposed 

section recognizes the nearly universal 

use of electronic payments by stating 

that State fish and wildlife agencies may 

request funds on a standard form only 

if it cannot use the electronic payment 

system. 

Section 80.96 May an agency request 

funds in excess of the Federal share? 

This proposed section expands on the 

current § 80.16, ‘‘Payments,’’ by 

clarifying that the grantee may request 

Federal grant funds for construction 

work in excess of the proportional 

Federal share of the project taking into 

account all previous advances and 

reimbursements for the project. This 

proposed practice is consistent with the 

Acts. 

Section 80.97 May an agency barter 

goods or services to carry out a grantfunded project? 

Section 80.98 How must an agency 

report barter transactions? 

The proposed § 80.97 and § 80.98 do 

not have corresponding sections in the 

current regulations. We added them 

because of audit findings in several 

States. The Office of the Inspector 

General also recommended that the 

Service address inconsistencies in 

Service Manual Chapter 522 FW 19 on 

program income and provide clear 

guidance on reporting barter 

transactions. 

Section 80.99 Are symbols available to 

identify projects? 

Section 80.100 Do agencies have to 

display the symbols in this part on 

completed projects? 

The proposed § 80.99 and § 80.100 

correspond to and closely follow the 

language of the current § 80.26, 

‘‘Symbols.’’ The only significant change 

is in the proposed § 80.100, which 

allows Regional Directors to authorize 

certain uses of the symbols instead of or 

in addition to the Director of the U.S. 

Fish and Wildlife Service. 

Subpart 1—Program Income 

The proposed §§ 80.120 through 

80.126 explain: (a) What program 

income is, (b) the conditions under 

which an agency may earn it, (c) how 

to calculate it, and (d) how to apply it 

to Federal and non-Federal outlays. 

Only the proposed § 80.121, ‘‘May an 

agency earn program income?’’, has a 

corresponding section at the current 

§ 80.14(c), ‘‘Application of Wildlife and 

Sport Fish Restoration Program funds.’’ 

The remaining sections in subpart I are 

based on Service Manual chapter 522 

FW 19, ‘‘Program Income from Federal 

Assistance Grants.’’ This chapter 

incorporates recommendations of a joint 

task force of Federal and State officials 

in 2004 and 2007. 

Subpart J—Real Property 

Section 80.130 Does an agency have to 

hold title to real property acquired 

under a grant? 

Section 80.131 Does an agency have to 

hold an easement acquired under a 

grant? 

The proposed § 80.130 and § 80.131 

do not have corresponding sections in 


cprice-sewell on DSK8KYBLC1PROD with PROPOSALS-1
Federal Register / Vol. 75, No. 111 / Thursday, June 10, 2010 / Proposed Rules 32883 

the current regulations. The DingellJohnson Sport Fish Restoration Act 

states: ‘‘Title to any real or personal 

property acquired by any State, and to 

improvements placed on State-owned 

lands through the use of funds paid to 

the State under the provisions of this 

Act, shall be vested in such State.’’ The 

Pittman-Robertson Wildlife Restoration 

Act does not have a similar requirement. 

The Act uses the term ‘‘title,’’ which 

applies to ownership or possessory 

interests, but not to easements or other 

nonownership or nonpossessory 

interests. The proposed section § 80.130 

would require grantees under either Act 

to hold title to the ownership interest in 

real property acquired under a grant. 

The proposed § 80.130 would prohibit 

the State fish and wildlife agency from 

holding title to an undivided ownership 

interest in the real property 

concurrently with a subgrantee or any 

other entity. The proposed § 80.131 

would require grantees under both Acts 

to hold easements acquired under a 

grant, but the proposed section would 

allow the grantee to share certain rights 

and responsibilities with another State 

agency or a subgrantee. The proposed 

§ 80.130 and § 80.131 are based on input 

received from State agencies and a joint 

task force of Federal and State officials. 

Section 80.132 Does an agency have to 

control the land or water where it 

completes capital improvements? 

This proposed section requires the 

grantee to control lands or waters on 

which it makes capital improvements 

with funds apportioned under the Acts. 

The proposed section corresponds to 

and closely follows the language of the 

current § 80.20, ‘‘Land control.’’ This 

language is only in the Dingell-Johnson 

Sport Fish Restoration Act, but the 

current regulations apply the 

requirement to funding under both Acts. 

The proposed section continues to 

apply it to funding under both Acts in 

the interest of having standard 

requirements for all funding under the 

Acts to the extent legally possible. 

Section 80.133 Does an agency have to 

maintain acquired or completed capital 

improvements? 

This proposed section corresponds to 

and is consistent with the language of 

the current § 80.17, ‘‘Maintenance.’’ 

Section 80.134 How must an agency 

use real property? 

This proposed section is consistent 

with the language of the current 

§ 80.14(b), ‘‘Application of Wildlife and 

Sport Fish Restoration Program funds,’’ 

the current § 80.20, ‘‘Land control,’’ and 

Service Manual chapters 522 FW 18, 

‘‘Useful Life,’’ 522 FW 21, ‘‘Allowable 

Recreational Activities and Related 

Facilities on Federal Assistance Lands,’’ 

and 522 FW 22, ‘‘Allowable Commercial 

Activities and Related Facilities on 

Federal Assistance Lands.’’ These 

Service Manual chapters were based on 

recommendations of a joint task force of 

Federal and State officials. 

Section 80.135 What if an agency 

allows a use of real property that 

interferes with the authorized purpose? 

This proposed section corresponds to 

and closely follows the language of the 

current § 80.14(b), ‘‘Application of 

Wildlife and Sport Fish Restoration 

Program funds.’’ It is also consistent 

with Service Manual Chapter 522 FW 

20, ‘‘Loss of Control and Disposal of Real 

Property.’’ This chapter is based on the 

recommendation of a joint task force of 

Federal and State officials. 

Section 80.136 When is a use of real 

property that interferes with the 

authorized purpose considered a 

diversion? 

This proposed section does not have 

a corresponding section in the current 

regulations, but it is based on the 

requirements of the current § 80.4, 

‘‘Diversion of license fees.’’ 

Section 80.137 What if real property is 

no longer useful or needed for its 

original purpose? 

This proposed section corresponds, in 

part, to the current § 80.14(b)(3), 

‘‘Application of Wildlife and Sport Fish 

Restoration Program funds.’’ One new 

element is that the director of an agency 

may propose another eligible purpose 

for real property no longer useful or 

needed for its original purpose. The 

director of the State fish and wildlife 

agency must ask the Service Regional 

Director to approve the proposed 

purpose. This section is based on a 

recommendation of a joint task force of 

Federal and State officials. It also 

follows, in large part, Service Manual 

chapter 522 FW 20, Loss of Control and 

Disposal of Real Property, which is 

based on a recommendation of a joint 

task force of Federal and State officials. 

Subpart K—Amendments and Appeals 

Section 80.150 How does an agency 

ask for an amendment of a grant? 

This proposed section does not have 

a corresponding section in the current 

regulations, but it is consistent with the 

current § 80.11, ‘‘Submission of 

proposals,’’ and Office of Management 

and Budget Circular A–102, Grants and 

Cooperative Agreements with State and 

Local Governments, Paragraph 1.c.(5)(e). 

It is also consistent with 43 CFR 12.70. 

Section 80.151 May an agency appeal 

a decision? 

This proposed section corresponds to 

the current § 80.7, ‘‘Appeals,’’ but 

expands it by providing timelines for 

appeals. It also specifies that appeals to 

the Secretary are governed by 43 CFR 4, 

subpart G. 

Subpart L—Information Collection 

Section 80.160 What are the 

information-collection requirements of 

this part? 

This proposed section corresponds to 

and expands on the current § 80.27, 

‘‘Information collection requirements.’’ 

The proposed section lists all 

information collection requirements in 

the proposed rule that are subject to the 

Paperwork Reduction Act. The Office of 

Management and Budget has approved 

all of these information collections and 

assigned them control numbers. 

Public Comments 

You may submit your comments and 

materials concerning this proposed rule 

by one of the methods listed in the 

ADDRESSES section. We will not accept 

comments sent by e-mail or fax or to an 

address not listed in the ADDRESSES

section. Finally, we will not consider 

hand-delivered comments that we do 

not receive, or mailed comments that 

are not postmarked, by the date 

specified in the DATES section. 

Before including your address, phone 

number, e-mail address, or other 

personal identifying information in your 

comment, you should be aware that 

your entire comment—including your 

personal identifying information—may 

be made publicly available at any time. 

While you can ask us in your comment 

to withhold your personal identifying 

information from public review, we 

cannot guarantee that we will be able to 

do so. 

Required Determinations 

Clarity of This Regulation 

We are required by Executive Orders 

12866 and 12988 and by the 

Presidential Memorandum of June 1, 

1998, to write all rules in plain 

language. This means that each rule we 

publish must: 

(a) Be logically organized; 

(b) Use the active voice to address 

readers directly; 

(c) Use clear language rather than 

jargon; 

(d) Be divided into short sections and 

sentences; and 

(e) Use lists and tables wherever 

possible. 

If you feel that we have not met these 

requirements, send us comments by one 


cprice-sewell on DSK8KYBLC1PROD with PROPOSALS-1
32884 Federal Register / Vol. 75, No. 111 / Thursday, June 10, 2010 / Proposed Rules 

of the methods listed in the ADDRESSES

section. To better help us revise the 

rule, your comments should be as 

specific as possible. For example, you 

should tell us the numbers of the 

sections or paragraphs that you find 

unclear, which sections or sentences are 

too long, the sections where you feel 

lists or tables would be useful, etc. 

Regulatory Planning and Review 

(E.O. 12866) 

The Office of Management and Budget 

(OMB) has determined that this rule is 

not significant and has not reviewed 

this rule under E.O. 12866. OMB bases 

its determination on the following four 

criteria: 

(a) Whether the rule will have an 

annual effect of $100 million or more on 

the economy or adversely affect an 

economic sector, productivity, jobs, the 

environment, or other units of the 

government. 

(b) Whether the rule will create 

inconsistencies with other Federal 

agencies’ actions. 

(c) Whether the rule will materially 

affect entitlements, grants, user fees, 

loan programs, or the rights and 

obligations of their recipients. 

(d) Whether the rule raises novel legal 

or policy issues. 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

The Regulatory Flexibility Act 

requires an agency to consider the 

impact of proposed rules on small 

entities, i.e., small businesses, small 

organizations, and small government 

jurisdictions. If there is a significant 

economic impact on a substantial 

number of small entities, the agency 

must perform a Regulatory Flexibility 

Analysis. This is not required if the 

head of an agency certifies the rule 

would not have a significant economic 

impact on a substantial number of small 

entities. The Small Business Regulatory 

Enforcement Fairness Act (SBREFA) 

amended the Regulatory Flexibility Act 

to require Federal agencies to state the 

factual basis for certifying that a rule 

would not have a significant economic 

impact on a substantial number of small 

entities. 

We have examined this proposed 

rule’s potential effects on small entities 

as required by the Regulatory Flexibility 

Act. We have determined that the 

proposed changes do not have a 

significant impact and do not require a 

Regulatory Flexibility Analysis because 

the changes: 

a. Give information to State fish and 

wildlife agencies that allows them to 

apply for and administer grants more 

easily, more efficiently, and with greater 

flexibility. Only State fish and wildlife 

agencies may receive grants in the three 

programs affected by this regulation, but 

small entities sometimes voluntarily 

become subgrantees of agencies. Any 

impact on these subgrantees would be 

beneficial. 

b. Address changes in law and 

regulation. This helps grant applicants 

and recipients by making the regulation 

consistent with current standards. Any 

impact on small entities that voluntarily 

become subgrantees of agencies would 

be beneficial. 

c. Change three provisions on license 

certification adopted in a final rule 

published on July 24, 2008, based on 

subsequent experience. These changes 

would impact only agencies and not 

small entities. 

d. Clarify additional issues in the 

Pittman-Robertson Wildlife Restoration 

Act and Dingell-Johnson Sport Fish 

Restoration Act. This would help 

agencies comply with statutory 

requirements and increase awareness of 

alternatives available under the law. 

Any impact on small entities that 

voluntarily become subgrantees of 

agencies would be beneficial. 

e. Clarify that (1) cooperative farming 

or grazing arrangements and (2) sales 

receipts retained by concessionaires or 

contractors are not program income. 

This clarification allows States to 

expand projects with small businesses 

and farmers without making these 

cooperative arrangements or sales 

receipts subject to program income 

restrictions. This clarification would be 

potentially beneficial to the small 

entities that voluntarily become 

cooperative farmers, cooperative 

ranchers, and concessionaires. 

f. Add information that allows States 

to enter into agreements with nonprofit 

organizations to share rights or 

responsibilities for easements acquired 

under grants for the mutual benefit of 

both parties. This addition would 

benefit the small entities that enter into 

these agreements voluntarily. 

g. Reword and reorganize the 

regulation to make it easier to 

understand. Any impact on the small 

entities that voluntarily become 

subgrantees of agencies would be 

beneficial. 

The Service has determined that the 

changes primarily impact State 

governments. The small entities affected 

by the changes are primarily 

concessionaires, cooperative farmers, 

cooperative ranchers, and subgrantees 

who voluntarily enter into mutually 

beneficial relationships with an agency. 

The impact on small entities would be 

very limited and beneficial in all cases. 

Consequently, we certify that because 

this proposed rule would not have a 

significant economic effect on a 

substantial number of small entities, a 

Regulatory Flexibility Analysis is not 

required. 

In addition, this proposed rule is not 

a major rule under SBREFA (5 U.S.C. 

804(2)) and would not have a significant 

impact on a substantial number of small 

entities because it does not: 

a. Have an annual effect on the 

economy of $100 million or more. 

b. Cause a major increase in costs or 

prices for consumers; individual 

industries; Federal, State, or local 

government agencies; or geographic 

regions. 

c. Have significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of U.S.-based enterprises to compete 

with foreign-based enterprises. 

Unfunded Mandates Reform Act 

The Unfunded Mandates Reform Act 

of 1995 (2 USC Ch.25; Pub. L. 104–4) 

establishes requirements for Federal 

agencies to assess the effects of their 

regulatory actions on State, local, and 

tribal governments and the private 

sector. The Act requires each Federal 

agency, to the extent permitted by law, 

to prepare a written assessment of the 

effects of a proposed rule with Federal 

mandates that may result in the 

expenditure by State, local, and tribal 

governments, in aggregate, or by the 

private sector, of $100 million or more 

(adjusted annually for inflation) in any 

one year. We have determined the 

following under the Unfunded 

Mandates Reform Act (2 U.S.C. 1501 et 

seq.): 

a. As discussed in the determination 

for the Regulatory Flexibility Act, this 

proposed rule would not have a 

significant economic effect on a 

substantial number of small entities. 

b. The regulation does not require a 

small government agency plan or any 

other requirement for expenditure of 

local funds. 

c. The programs governed by the 

current regulations and enhanced by the 

proposed changes potentially assist 

small governments financially when 

they occasionally and voluntarily 

participate as subgrantees of an agency. 

d. The proposed rule clarifies and 

enhances the current regulations 

allowing State, local, and tribal 

governments, and the private sector to 

receive the benefits of grant funding in 

a more flexible, efficient, and effective 

manner. They may receive these 

benefits as a subgrantee of a State fish 

and wildlife agency, a cooperating 

farmer or rancher, a concessionaire, a 


cprice-sewell on DSK8KYBLC1PROD with PROPOSALS-1
Federal Register / Vol. 75, No. 111 / Thursday, June 10, 2010 / Proposed Rules 32885 

concurrent holder of a grant-acquired 

easement, or a holder of enforcement 

rights under an easement. 

e. Any costs incurred by a State, local, 

and tribal government, or the private 

sector are voluntary. There are no 

mandated costs associated with the 

proposed rule. 

f. The benefits of grant funding 

outweigh the costs. The Federal 

Government provides up to 75 percent 

of the cost of each grant to the 50 States 

in the three programs affected by the 

proposed rule. The Federal Government 

may also provide up to 100 percent of 

the cost of each grant to the 

Commonwealths of Puerto Rico and the 

Northern Mariana Islands, the District of 

Columbia, and the territories of Guam, 

the U.S. Virgin Islands, and American 

Samoa. All 50 States and other eligible 

jurisdictions voluntarily apply for grants 

in these programs each year. This rate 

of participation is clear evidence that 

the benefits of grant funding outweigh 

the costs. 

g. This proposed rule would not 

produce a Federal mandate of $100 

million or greater in any year, i.e., it is 

not a ‘‘significant regulatory action’’ 

under the Unfunded Mandates Reform 

Act. 

Takings 

This proposed rule would not have 

significant takings implications under 

E.O. 12630 because it would not have a 

provision for taking private property. 

Therefore, a takings implication 

assessment is not required. 

Federalism 

This proposed rule would not have 

sufficient Federalism effects to warrant 

preparation of a Federalism assessment 

under E.O. 13132. It would not interfere 

with the States’ ability to manage 

themselves or their funds. We work 

closely with the States in administration 

of these programs, and they helped us 

identify those sections of the current 

regulations in need of change and new 

issues in need of clarification through 

regulation. In drafting the proposed 

rule, we received comments from 

committees of the Association of Fish 

and Wildlife Agencies and from the 

Joint Federal/State Task Force on 

Federal Assistance Policy. The Director 

of the U.S. Fish and Wildlife Service 

and the President of the Association of 

Fish and Wildlife Agencies jointly 

chartered the Joint Federal/State Task 

Force on Federal Assistance Policy in 

2002 to identify issues of national 

concern in the three grant programs 

affected by the proposed rule. 

Civil Justice Reform 

The Office of the Solicitor has 

determined under E.O. 12988 that the 

rule would not unduly burden the 

judicial system and meets the 

requirements of sections 3(a) and 3(b)(2) 

of the Order. The proposed rule will 

benefit grantees because it: 

(a) Updates the regulations to reflect 

changes in policy and practice during 

the past 25 years; 

(b) Makes the regulations easier to use 

and understand by improving the 

organization and using plain language; 

(c) Modifies three provisions in the 

final rule to amend 50 CFR 80 published 

in the Federal Register at 73 FR 43120 

on July 24, 2008, based on subsequent 

experience; and 

(d) Adopts two recommendations on 

new issues received from State fish and 

wildlife agencies in response to the 

proposed rule to amend 50 CFR 80 

published in the Federal Register at 73 

FR 24523 on May 5, 2008. 

Paperwork Reduction Act 

We examined the proposed rule under 

the Paperwork Reduction Act (44 U.S.C. 

3501 et seq.). We may not collect or 

sponsor and you are not required to 

respond to a collection of information 

unless it displays a current OMB control 

number. The proposed 50 CFR 80.160 

describes seven information collections 

in the proposed rule. All of these 

collections request information from 

State fish and wildlife agencies, and all 

have current OMB control numbers. 

OMB authorized and approved 

Governmentwide standard forms for 

three of the seven information 

collections. These three information 

collections are for the purposes of: (a) 

Application for a grant; (b) certifications 

related to authority, capability, and legal 

compliance; and (c) reporting on the use 

of Federal funds, match, and program 

income. 

OMB approved three other 

information collections in the proposed 

rule under control number 1018–0109, 

but has not approved Governmentwide 

standard forms for these collections. 

The purposes of these information 

collections are to provide the Service 

with: (a) A project statement in support 

of a grant application, (b) a report on 

progress in completing a grant-funded 

project, and (c) a request to approve an 

update or another change in information 

provided in a previously approved 

application. OMB authorized these 

information collections in its Circular 

A–102. 

The Acts and the current 50 CFR 

80.10 authorize the seventh information 

collection. This collection allows the 

Service to learn the number of people 

who have a paid license to hunt and the 

number of people who have a paid 

license to fish in each State during a 

State-specified certification year. The 

Service uses this information in 

statutory formulas to apportion funds in 

the Wildlife Restoration and Sport Fish 

Restoration programs among the States. 

OMB approved this information 

collection on forms FWS 3–154a and 3– 

154b under control number 1018–0007. 

The proposed rule does not change the 

information required on forms FWS 3– 

154a and 3–154b. It merely establishes 

a common approach for States to assign 

license holders to a certification year. 

National Environmental Policy Act 

We have analyzed this rule under the 

National Environmental Policy Act, 42 

U.S.C. 432–437(f) and part 516 of the 

Departmental Manual. This rule does 

not constitute a major Federal action 

significantly affecting the quality of the 

human environment. An environmental 

impact statement/assessment is not 

required due to the categorical 

exclusion for administrative changes 

provided at 516 DM 2, Appendix 1, 

section 1.10. 

Government-to-Government 

Relationship With Tribes 

We have evaluated potential effects 

on federally recognized Indian tribes 

under the President’s memorandum of 

April 29, 1994, ‘‘Government-toGovernment Relations with Native 

American Tribal Governments’’ (59 FR 

22951), E.O. 13175, and 512 DM 2. We 

have determined that there are no 

potential effects. This proposed rule 

would not interfere with the tribes’ 

ability to manage themselves or their 

funds. 

Energy Supply, Distribution, or Use 

(E.O. 13211) 

E.O. 13211 addresses regulations that 

significantly affect energy supply, 

distribution, and use and requires 

agencies to prepare Statements of 

Energy Effects when undertaking certain 

actions. This rule is not a significant 

regulatory action under E.O. 12866 and 

would not affect energy supplies, 

distribution, or use. Therefore, this 

action is not a significant energy action 

and no Statement of Energy Effects is 

required. 

List of Subjects in 50 CFR Part 80 

Education, Fish, Fishing, Grants 

administration, Grant programs, 

Hunting, Natural resources, Real 

property acquisition, Recreation and 

recreation areas, Signs and symbols, 

Wildlife. 


cprice-sewell on DSK8KYBLC1PROD with PROPOSALS-1
32886 Federal Register / Vol. 75, No. 111 / Thursday, June 10, 2010 / Proposed Rules 

Proposed Regulation Promulgation 

For the reasons discussed in the 

preamble, we propose to amend title 50 

of the Code of Federal Regulations, 

chapter I, subchapter F, by revising part 

80 to read as follows: 

PART 80—ADMINISTRATIVE 

REQUIREMENTS, PITTMANROBERTSON WILDLIFE 

RESTORATION AND DINGELLJOHNSON SPORT FISH 

RESTORATION ACTS 

Subpart A—General 

Sec. 

80.1 What does this part do? 

80.2 What terms do I need to know? 

Subpart B—State Fish and Wildlife Agency 

Eligibility 

80.10 Who is eligible to receive the benefits 

of the Acts? 

80.11 How does a State become ineligible 

to receive the benefits of the Acts? 

80.12 Does an agency have to confirm that 

it wants to receive an annual 

apportionment of funds? 

Subpart C—License Revenue 

80.20 What does revenue from hunting and 

fishing licenses include? 

80.21 What if a State diverts license 

revenue from the control of its fish and 

wildlife agency? 

80.22 What must a State do to resolve a 

declaration of diversion? 

80.23 Does a declaration of diversion affect 

a previous Federal obligation of funds? 

Subpart D—Licensee Certification 

80.30 Why must an agency certify the 

number of paid license holders? 

80.31 How does an agency certify the 

number of paid license holders? 

80.32 What is the certification period? 

80.33 How does an agency decide who to 

count as paid license holders in the 

annual certification? 

80.34 May an agency count license holders 

in the annual certification if the agency 

receives funds from the State to cover 

their license fees? 

80.35 How does an agency calculate net 

revenue from a license? 

80.36 What must an agency do if it 

discovers errors in its data? 

80.37 May the Service recalculate an 

apportionment if an agency submits 

revised data? 

80.38 May the Director correct a Service 

error in apportioning funds? 

Subpart E—Eligible Activities 

80.50 What activities are eligible for 

funding under the Pittman-Robertson 

Wildlife Restoration Act? 

80.51 What activities are eligible for 

funding under the Dingell-Johnson Sport 

Fish Restoration Act? 

80.52 What activities are ineligible for 

funding? 

80.53 Are administrative costs for State 

central services eligible expenses? 

80.54 May an agency receive a grant to 

carry out part of a larger project? 

80.55 How does a proposed project qualify 

as substantial in character and design? 

Subpart F—Allocation of Funds by an 

Agency 

80.60 What is the relationship between the 

Basic Hunter Education and Safety 

subprogram and the Enhanced Hunter 

Education and Safety program? 

80.61 What requirements apply to funds 

for the Recreational Boating Access 

subprogram? 

80.62 What limitations apply to spending 

on the Aquatic Resource Education and 

Outreach and Communications 

subprograms? 

80.63 Does an agency have to allocate costs 

in multipurpose projects and facilities? 

80.64 How does an agency allocate costs in 

multipurpose projects and facilities? 

80.65 Does an agency have to allocate 

funds between marine and freshwater 

fisheries projects? 

80.66 What requirements apply to 

allocation of funds between marine and 

freshwater fisheries projects? 

80.67 May an agency finance an activity 

from more than one annual 

apportionment? 

≤80.68 What requirements apply to 

financing an activity from more than one 

annual apportionment? 

Subpart G—Application for a Grant 

80.80 How does an agency apply for a 

grant? 

80.81 What must an agency submit when 

applying for a comprehensivemanagement-system grant? 

80.82 What must an agency submit when 

applying for a project-by-project grant? 

80.83 What is the Federal share of 

allowable costs? 

80.84 How does the Service establish the 

non-Federal share of allowable costs? 

80.85 What requirements apply to match? 

Subpart H—General Grant Administration 

80.90 What are the responsibilities of an 

agency? 

80.91 What is a Federal obligation of funds 

and how does it occur? 

80.92 How long are funds available for a 

Federal obligation? 

80.93 When may an agency incur costs 

under a grant? 

80.94 May an agency incur costs before the 

effective date of the grant period? 

80.95 How does an agency receive Federal 

grant funds? 

80.96 May an agency request funds in 

excess of the Federal share? 

80.97 May an agency barter goods or 

services to carry out a grant-funded 

project? 

80.98 How must an agency report barter 

transactions? 

80.99 Are symbols available to identify 

projects? 

80.100 Do agencies have to display the 

symbols in this part on completed 

projects? 

Subpart I—Program Income 

80.120 What is program income? 

80.121 May an agency earn program 

income? 

80.122 May an agency deduct the costs of 

generating program income from gross 

income? 

80.123 How may an agency use program 

income? 

80.124 How may an agency use 

unexpended program income? 

80.125 How must an agency treat income 

that it earns after the grant period? 

80.126 How must an agency treat income 

earned by a subgrantee after the grant 

period? 

Subpart J—Real Property 

80.130 Does an agency have to hold title to 

real property acquired under a grant? 

80.131 Does an agency have to hold an 

easement acquired under a grant? 

80.132 Does an agency have to control the 

land or water where it completes capital 

improvements? 

80.133 Does an agency have to maintain 

acquired or completed capital 

improvements? 

80.134 How must an agency use real 

property? 

80.135 What if an agency allows a use of 

real property that interferes with the 

authorized purpose? 

80.136 When is a use of real property that 

interferes with the authorized purpose 

considered a diversion? 

80.137 What if real property is no longer 

useful or needed for its original purpose? 

Subpart K—Amendments and Appeals 

80.150 How does an agency ask for an 

amendment of a grant? 

80.151 May an agency appeal a decision? 

Subpart L—Information Collection 

80.160 What are the information collection 

requirements of this part? 

Authority: 16 U.S.C. 669–669k; 16 U.S.C. 

715 et seq.; 16 U.S.C. 777–777n, except 777e– 

1 and g–1; 18 U.S.C. 701; 26 U.S.C. 4161, 

4162, 4181, 4182, 9503, and 9504; 48 U.S.C. 

1469a; E.O. 12372. 

Subpart A—General 

§ 80.1 What does this part do? 

This part of the Code of Federal 

Regulations tells States how they may: 

(a) Use revenues derived from State 

hunting and fishing licenses in 

compliance with the Acts. 

(b) Receive annual apportionments 

from the Federal Aid to Wildlife 

Restoration Fund (16 U.S.C. 669(b)), if 

authorized, and the Sport Fish 

Restoration and Boating Trust Fund (26 

U.S.C. 9504). 

(c) Receive financial assistance from 

the Wildlife Restoration program, the 

Basic Hunter Education and Safety 

subprogram, and the Enhanced Hunter 

Education and Safety grant program, if 

authorized. 

(d) Receive financial assistance from 

the Sport Fish Restoration program, the 

Recreational Boating Access 


cprice-sewell on DSK8KYBLC1PROD with PROPOSALS-1
Federal Register / Vol. 75, No. 111 / Thursday, June 10, 2010 / Proposed Rules 32887 

subprogram, the Aquatic Resources 

Education subprogram, and the 

Outreach and Communications 

subprogram. 

(e) Comply with the requirements of 

the Acts. 

§ 80.2 What terms do I need to know? 

The terms in this section pertain only 

to the regulations in this part. 

Acts means the Pittman-Robertson 

Wildlife Restoration Act of September 2, 

1937, as amended (16 U.S.C. 669–669k), 

and the Dingell-Johnson Sport Fish 

Restoration Act of August 9, 1950, as 

amended (16 U.S.C. 777–777n, except 

777e–1 and g–1). 

Agency means a State fish and 

wildlife agency. 

Angler means a person who fishes for 

sport fish for recreational purposes as 

permitted by State law. 

Capital improvement means an 

alteration, addition, or replacement that 

increases the value of real property by 

at least $10,000. An agency may use its 

own definition of capital improvement 

if its definition includes all capital 

improvements as defined here. 

Comprehensive management system 

grant means a grant that funds all or 

part of a State’s comprehensive 

management system. This system: 

(1) Assesses the current, projected, 

and desired status of fish and wildlife; 

(2) Develops a strategic plan and 

carries it out through an operational 

planning process; and 

(3) Evaluates results. The planning 

period is at least 5 years using a 

minimum 15-year projection of the 

desires and needs of the State’s citizens. 

Construction means the act of 

building or significantly renovating, 

altering, or repairing a structure. 

Acquiring, clearing, and reshaping land 

and demolishing structures are types or 

phases of construction. Examples of 

structures are buildings, roads, parking 

lots, utility lines, fences, piers, wells, 

pump stations, ditches, dams, dikes, 

water-control structures, fish-hatchery 

raceways, and shooting ranges. 

Director means the Director of the 

U.S. Fish and Wildlife Service, or his or 

her designated representative, who is 

delegated authority by the Secretary to 

administer the Acts. 

Diversion means any use of revenue 

from the license fees paid by hunters 

and anglers for a purpose other than 

administration of the State fish and 

wildlife agency. 

Grant means an award of money, the 

principal purpose of which is to transfer 

funds or property from a Federal agency 

to a grantee to support or stimulate an 

authorized public purpose under the 

Acts. This part uses the term grant for 

both a grant and a cooperative 

agreement for convenience of reference. 

This use does not affect the legal 

distinction between the two 

instruments. The meaning of grant in 

the terms grant funds, grant-funded, and 

under the grant includes the matching 

cash and any matching in-kind 

contributions in addition to the Federal 

award of money. 

Grantee means the State fish and 

wildlife agency that applies for the grant 

and carries out grant-funded activities 

in programs authorized by the Acts. The 

State fish and wildlife agency acts on 

behalf of the State government, which is 

the legal entity and is accountable for 

the use of Federal funds, matching 

funds, and matching in-kind 

contributions. 

Match means the value of any nonFederal in-kind contributions and the 

portion of the costs of a grant-funded 

project or projects not borne by the 

Federal government. 

Project means one or more related 

undertakings in a project-by-project 

grant that are necessary to fulfill a need 

or needs, as defined by the State fish 

and wildlife agency, consistent with the 

purposes of the appropriate Act. For 

convenience of reference in this part, 

the meaning of project includes an 

agency’s fish and wildlife program 

under a comprehensive management 

system grant. 

Project-by-project grant means an 

award of money based on a detailed 

statement of a project or projects and 

other supporting documentation. 

Real property means one, several, or 

all interests, benefits, and rights 

inherent in the ownership of a parcel of 

land or water including anything above, 

below, or attached to it as a result of 

natural processes or human actions. 

Regional Director means the person 

appointed by the Director to direct the 

Service’s operations in one of its 

geographic Regions, or his or her 

designated representative. This person’s 

responsibility does not extend to any 

administrative units that the Service’s 

Washington Office supervises directly 

in that geographic Region. 

Secretary means the person appointed 

by the President to direct the operation 

of the Department of the Interior, or his 

or her designated representative. 

Service means the U.S. Fish and 

Wildlife Service. 

Sport fish means aquatic, gillbreathing, vertebrate animals with 

paired fins, having material value for 

recreation in the marine and fresh 

waters of the United States. 

State means any State of the United 

States, the Commonwealths of Puerto 

Rico and the Northern Mariana Islands, 

and the territories of Guam, the U.S. 

Virgin Islands, and American Samoa. 

State also includes the District of 

Columbia for purposes of the DingellJohnson Sport Fish Restoration Act, the 

Sport Fish Restoration program, and its 

subprograms. State does not include the 

District of Columbia for purposes of the 

Pittman-Robertson Wildlife Restoration 

Act and the programs and subprogram 

under the Act because the PittmanRobertson Wildlife Restoration Act does 

not authorize funding for the District. 

References to ‘‘the 50 States’’ apply only 

to the 50 States of the United States and 

do not include the Commonwealths of 

Puerto Rico and the Northern Mariana 

Islands, the District of Columbia, or the 

territories of Guam, the U.S. Virgin 

Islands, and American Samoa. 

State fish and wildlife agency means 

the administrative unit designated by 

State law or regulation to carry out State 

laws for management of fish and 

wildlife resources. If an agency has 

other jurisdictional responsibilities, the 

agency is considered the State fish and 

wildlife agency only when exercising 

responsibilities specific to management 

of the State’s fish and wildlife resources. 

Subaccount means a group of similar 

activities that the Service tracks for 

purposes of financial accountability 

using a distinct numeric code for each 

group. These groups correspond with 

programs, subprograms, or a 

combination of subprograms. 

Useful life means the period during 

which a federally funded capital 

improvement is capable of fulfilling its 

intended purpose with adequate routine 

maintenance. 

Wildlife means the indigenous or 

naturalized species of birds or mammals 

that are either: 

(1) Wild and free-ranging; 

(2) Held in a captive breeding 

program established to reintroduce 

individuals of a depleted indigenous 

species into previously occupied range; 

or 

(3) Under the jurisdiction of a State 

fish and wildlife agency. 

Subpart B—State Fish and Wildlife 

Agency Eligibility 

§ 80.10 Who is eligible to receive the 

benefits of the Acts? 

States acting through their fish and 

wildlife agencies are eligible for benefits 

of the Acts only if they pass and 

maintain legislation that: 

(a) Assents to the provisions of the 

Acts; 

(b) Ensures the conservation of fish 

and wildlife; and 

(c) Requires that revenue from license 

fees paid by hunters and anglers be: 


cprice-sewell on DSK8KYBLC1PROD with PROPOSALS-1
32888 Federal Register / Vol. 75, No. 111 / Thursday, June 10, 2010 / Proposed Rules 

(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. 

§ 80.11 How does a State become 

ineligible to receive the benefits of the 

Acts? 

(a) A State becomes ineligible to 

receive the benefits of the Acts if the 

Director finds that it: 

(1) Does not pass legislation required 

at § 80.10 or passes legislation contrary 

to the Acts; 

(2) Diverts revenue from license fees 

paid by hunters and anglers or from 

property acquired with this revenue 

from the control of the State fish and 

wildlife agency to purposes other than 

its administration; or 

(b) A State may become ineligible to 

receive the benefits of the Acts if the 

Director finds that the State failed 

materially to comply with any law, 

regulation, or term of a grant as it relates 

to acceptance and use of funds under 

the Acts. 

§ 80.12 Does an agency have to confirm 

that it wants to receive an annual 

apportionment of funds? 

No. However, if a State fish and 

wildlife agency does not want to receive 

the annual apportionment of funds, it 

must notify the Service in writing 

within 60 days of receiving a 

preliminary or final certificate of 

apportionment. 

Subpart C—License Revenue 

§ 80.20 What does revenue from hunting 

and fishing licenses include? 

(a) Hunting and fishing license 

revenue includes: 

(1) Proceeds that the State fish and 

wildlife agency receives from the sale of 

State-issued general or special hunting 

or fishing licenses, permits, stamps, 

tags, access and use fees, or other State 

charges to hunt or fish for recreational 

purposes; 

(2) Real, personal, or intellectual 

property acquired with license revenue; 

(3) Income from the sale, lease, or 

rental of, granting rights to, or a fee for 

access to property acquired or 

constructed with license revenue (see 

paragraph (b) of this section); or 

(4) Income from the sale, lease, or 

rental of, granting rights to, or a fee for 

access to a recreational opportunity, 

product, or commodity derived from 

property acquired, managed, 

maintained, or produced with license 

revenue (see paragraph (b) of this 

section); 

(5) Interest, dividends, or other 

income earned on license revenue; 

(6) Reimbursements for expenditures 

originally paid with license revenue; 

and 

(7) Payments received for services 

funded by license revenue. 

(b) Property referred to in paragraphs 

(a)(3) and (a)(4) of this section includes, 

but is not limited to: 

(1) Real property, such as land owned 

in fee title, a leasehold interest, 

easements, mineral rights, standing 

timber, and structures; 

(2) Personal property, such as 

vehicles, equipment, tools, supplies, 

annual crops, minerals extracted from 

the land, harvested timber, animal 

products, cash, and securities; and 

(3) Intellectual property, such as 

patents and copyrights. 

§ 80.21 What if a State diverts license 

revenue from the control of its fish and 

wildlife agency? 

If a State violates the requirements of 

§ 80.10 by diverting license revenue 

from the control of its fish and wildlife 

agency to purposes other than the 

agency’s administration, the Director 

may declare the State to be in diversion. 

The State is ineligible to receive benefits 

under the relevant Act from the date the 

Director signs the declaration of 

diversion until the State resolves the 

diversion. 

§ 80.22 What must a State do to resolve a 

declaration of diversion? 

The State must complete the actions 

in paragraphs (a) through (f) of this 

section to resolve a declaration of 

diversion. The State must use a source 

of funds other than license revenue to 

fund the replacement of license 

revenue. 

(a) The State must enact adequate 

legislative prohibitions to prevent future 

diversions of license revenue. 

(b) The State fish and wildlife agency 

must regain all diverted cash derived 

from license revenue and the interest 

lost up to the date of repayment, and it 

must enter into State records the receipt 

of this cash and interest. 

(c) The agency must receive either the 

revenue earned from diverted property 

during the period of diversion or the 

current market rental rate of any 

diverted property, whichever is greater. 

(d) The agency must take one of the 

following actions to resolve a diversion 

of real, personal, or intellectual 

property: 

(1) Regain management control of the 

property, which must be in about the 

same condition as before diversion; 

(2) Receive replacement property that 

meets the criteria in paragraph (f) of this 

section; or 

(3) Receive a cash amount at least 

equal to the current market value of the 

diverted property only if the Regional 

Director agrees that the actions 

described in paragraphs (d)(1) and (d)(2) 

of this section are not possible. 

(e) The agency must enter into State 

records the action taken, current market 

value, amount received, and fish and 

wildlife benefits if applicable. 

(f) To be acceptable under paragraph 

(d)(2) of this section, replacement 

property must have both: 

(1) Market value that at least equals 

the current market value of the diverted 

property, and 

(2) Fish or wildlife benefits that at 

least equal those of the property 

diverted, as approved by the Regional 

Director. 

§ 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 § 80.91 for when a 

Federal obligation occurs. 

Subpart D—License Certification 

§ 80.30 Why must an agency certify the 

number of paid license holders? 

A State fish and wildlife agency must 

certify the number of people having 

paid licenses to hunt and paid licenses 

to fish because the Service uses these 

data in statutory formulas to apportion 

funds in the Wildlife Restoration and 

Sport Fish Restoration programs among 

the States. 

§ 80.31 How does an agency certify the 

number of paid license holders? 

(a) A State fish and wildlife agency 

certifies the number of paid license 

holders by responding to the Director’s 

annual request for the following data: 

(1) The number of people who have 

paid licenses to hunt in the State during 

the State-specified certification period 

(certification period); and 

(2) The number of people who have 

paid licenses to fish in the State during 

the certification period. 

(b) The director of the agency must 

certify this information in the format 

that the Director specifies. The director 

of the agency must provide 

documentation to support the accuracy 

of this information at the Director’s 

request. 

(c) The director of the agency is 

responsible for eliminating multiple 


cprice-sewell on DSK8KYBLC1PROD with PROPOSALS-1
Federal Register / Vol. 75, No. 111 / Thursday, June 10, 2010 / Proposed Rules 32889 

counting of single individuals in the 

information that he or she certifies and 

may use statistical sampling, automated 

record consolidation, or other 

techniques approved by the Director for 

this purpose. If a State uses statistical 

sampling, it must sample at the earlier 

of the following: 

(1) Five years after the last statistical 

sample; or 

(2) The first certification period 

affected by a change in the licensing 

system that could affect the number of 

people who hold a paid license to hunt 

or a paid license to fish. 

§ 80.32 What is the certification period? 

A certification period must: 

(a) Be 12 consecutive months; 

(b) Correspond to the State’s fiscal 

year or license year; 

(c) Be consistent from year to year 

unless the Director approves a change; 

and 

(d) End at least 1 year and no more 

than 2 years before the beginning of the 

Federal fiscal year in which the 

apportioned funds first become 

available for expenditure. 

§ 80.33 How does an agency decide who 

to count as paid license holders in the 

annual certification? 

(a) An agency must follow the rules in 

the following table in deciding how to 

count paid license holders in the annual 

certification. For any license holder to 

be counted, the State fish and wildlife 

agency must be able to verify the license 

holder’s name in State records. 

Type of license holder How to count each license holder 

(1) A person who has either a paid license to hunt or a paid license to 

fish for sport or recreation even if the person is not required to have 

a paid license or is unable to hunt or fish.

Once. 

(2) A person who has more than one paid license to hunt because the 

person either voluntarily obtained them or was required to have more 

than one license.

Once. 

(3) A person who has more than one paid license to fish because the 

person either voluntarily obtained them or was required to have more 

than one license.

Once. 

(4) A person who has a single-year license for which the State fish and 

wildlife agency receives at least $1 of net revenue. (Single-year licenses are valid for any length of time less than 2 years.).

Once in the certification period in which the license first becomes valid. 

(5) A person who has a multiyear license. (Multiyear licenses may be 

valid for either a specific or indeterminate number of years, but must 

be valid for at least 2 years.).

Once in each certification period in which the license is valid only if the 

license meets the requirements in paragraph (b) of this section. 

(6) A person holding a paid combination license permitting both hunting 

and fishing.

Twice: Once as a person who has a paid hunting license, and once as 

a person who has a paid fishing license. 

(7) A person who has a license that allows the license holder only to 

trap animals or only to engage in commercial activities.

Cannot be counted. 

(b) For a multiyear license to be 

eligible under paragraph (a)(5) of this 

section, the State fish and wildlife 

agency must receive net revenue from 

the multiyear license of at least $1 for 

each year in which the license is valid. 

(1) The agency may compute net 

revenue from a multiyear license 

annually or at the time of sale. It must 

base the net revenue on either the: 

(i) Duration of the license, in the case 

of a multiyear license with a specified 

ending date; or 

(ii) Expected lifespan of the license 

holder, in the case of a lifetime license. 

(2) The agency may use statistical 

sampling, life expectancy tables, 

mortality tables, or other techniques 

approved by the Director to decide how 

many multiyear-license holders remain 

alive in the certification period. 

§ 80.34 May an agency count license 

holders in the annual certification if the 

agency receives funds from the State to 

cover their license fees? 

If a State fish and wildlife agency 

receives funds from the State to cover 

fees normally charged for a category of 

licenses, the State may count those 

license holders in the annual 

certification only under the following 

conditions: 

(a) The State funds must come from 

a source other than hunting- and 

fishing-license revenue; 

(b) The State funds must equal or 

exceed the fees that the license holder 

would have paid for comparable 

hunting or fishing privileges; 

(c) The agency must issue each 

license in the license holder’s name; 

(d) The agency must receive and 

account for the State funds as license 

revenue; and 

(e) The license fees must meet all 

other requirements of this part. 

§ 80.35 How does an agency calculate net 

revenue from a license? 

The State fish and wildlife agency 

must calculate net revenue from a 

license by subtracting the per-license 

costs of issuing the license from the 

revenue generated by the license. 

Examples of costs of issuing licenses 

are: agents’ or sellers’ fees; automated 

license-system costs; licensing-unit 

personnel costs; and the costs of 

printing, distribution, and control. 

§ 80.36 What must an agency do if it 

becomes aware of errors in its data? 

A State fish and wildlife agency must 

submit revised certified data on paid 

license holders within 90 days after it 

becomes aware of errors in its certified 

data. The State may become ineligible to 

participate in the benefits of the relevant 

Act if it becomes aware of errors in its 

certified data and does not resubmit 

accurate certified data within 90 days. 

§ 80.37 May the Service recalculate an 

apportionment if an agency submits revised 

data? 

If a State fish and wildlife agency 

submits revised certified data on paid 

license holders, the Service may take 

one of the following actions depending 

on the timing and effects of the revision: 

(a) If an agency submits revised 

certified data on paid license holders 

before the Director approves the final 

apportionment under the Acts, the 

Service may recalculate the proposed 

apportionment. 

(b) If an agency submits revised 

certified data on paid license holders 

after the Director approves the final 

apportionment, the Service may 

recalculate the apportionment only if it 

would not reduce apportioned funds to 

other State fish and wildlife agencies. 

§ 80.38 May the Director correct a Service 

error in apportioning funds? 

Yes. The Director may correct any 

error that the Service makes in 

apportioning funds. 


cprice-sewell on DSK8KYBLC1PROD with PROPOSALS-1
32890 Federal Register / Vol. 75, No. 111 / Thursday, June 10, 2010 / Proposed Rules 

Subpart E—Eligible Activities 

§ 80.50 What activities are eligible for 

funding under the Pittman-Robertson 

Wildlife Restoration Act? 

The following activities are eligible 

for funding under the PittmanRobertson Wildlife Restoration Act: 

(a) Wildlife Restoration program. 

(1) Restore or manage wildlife. 

(2) Conduct research on problems of 

wildlife management if necessary to 

administer wildlife resources efficiently. 

(3) Select, restore, rehabilitate, or 

improve lands or waters as habitat for 

wildlife. 

(4) Acquire real property suitable or 

capable of being made suitable for 

wildlife habitat or public access. 

(5) Build structures or acquire 

equipment, goods, and services to: 

(i) Restore, rehabilitate, or improve 

lands or waters as habitat for wildlife; 

or 

(ii) Provide public access. 

(6) Operate or maintain: 

(i) Projects that the State fish and 

wildlife agency completed under the 

Pittman-Robertson Wildlife Restoration 

Act; or 

(ii) Facilities that the agency acquired 

or constructed with funds other than 

those authorized under the PittmanRobertson Wildlife Restoration Act if 

these facilities are necessary to carry out 

activities authorized by the PittmanRobertson Wildlife Restoration Act. 

(7) Manage wildlife areas and 

resources. 

(b) Wildlife Restoration—Basic Hunter 

Education and Safety subprogram. 

(1) Teach the skills, knowledge, and 

attitudes necessary to be a responsible 

hunter. 

(2) Construct, operate, or maintain 

firearm and archery ranges for public 

use. 

(c) Enhanced Hunter Education and 

Safety program. 

(1) Enhance programs for hunter 

education, hunter development, and 

firearm and archery safety. Hunterdevelopment programs introduce 

individuals to and recruit them to take 

part in hunting, bow hunting, target 

shooting, or archery. 

(2) Enhance interstate coordination of 

hunter-education and firearm- and 

archery-range programs. 

(3) Enhance programs for education, 

safety, or development of bow hunters 

and archers. 

(4) Enhance construction and 

development of firearm and archery 

ranges. 

(5) Update safety features of firearm 

and archery ranges. 

§ 80.51 What activities are eligible for 

funding under the Dingell-Johnson Sport 

Fish Restoration Act? 

The following activities are eligible 

for funding under the Dingell-Johnson 

Sport Fish Restoration Act: 

(a) Sport Fish Restoration program. 

(1) Restore or manage sport fish. 

(2) Conduct research on fish 

management or culture if necessary to 

administer sport fish resources 

efficiently. 

(3) Obtain data to guide and direct the 

regulation of fishing. These data may be 

on: the size and geographic range of 

sport fish populations; changes in sport 

fish populations due to fishing, other 

human activities, or natural causes; and 

the effects of any measures or 

regulations applied. 

(4) Develop and adopt plans to restock 

sport fish and forage fish in the natural 

areas or districts covered by the plans; 

and obtain data to develop, carry out, 

and test the effectiveness of the plans. 

(5) Select, restore, rehabilitate, or 

improve areas of land or water 

adaptable as habitat for sport fish or as 

a buffer to protect that habitat. 

(6) Acquire real property suitable or 

capable of being made suitable for sport 

fish habitat or as a buffer to protect that 

habitat, or acquire real property for 

public access. Closures to sport fishing 

must be based on the recommendations 

of the State fish and wildlife agency for 

fish and wildlife management purposes. 

(7) Build structures or acquire 

equipment, goods, and services to 

provide public access to or to restore, 

rehabilitate, or improve areas of water or 

land as habitat for sport fish. 

(8) Construct, renovate, operate, or 

maintain pumpout and dump stations. 

A pumpout station is a facility that 

pumps or receives sewage from a type 

III marine sanitation device that the U.S. 

Coast Guard requires on some vessels. A 

dump station, also referred to as a 

‘‘waste reception facility,’’ is specifically 

designed to receive waste from portable 

toilets on vessels. 

(9) Operate or maintain: 

(i) Projects that the State fish and 

wildlife agency completed under the 

Dingell-Johnson Sport Fish Restoration 

Act; or 

(ii) Facilities that the agency acquired 

or constructed with funds other than 

those authorized by the Dingell-Johnson 

Sport Fish Restoration Act if these 

facilities are necessary to carry out 

activities authorized by the Act. 

(b) Sport Fish Restoration— 

Recreational Boating Access 

subprogram. 

(1) Acquire land for new facilities, 

build new facilities, or acquire, 

renovate, or improve existing facilities 

to create or improve public access to the 

waters of the United States or improve 

the suitability of these waters for 

recreational boating. A broad range of 

access facilities and associated 

amenities can qualify for funding, but 

the facilities must accommodate boats 

with any size of motor that is reasonable 

and legal for use on the applicable body 

of water. ‘‘Facilities’’ includes auxiliary 

structures necessary to ensure safe use 

of recreational boating access facilities. 

(2) Conduct surveys to determine the 

adequacy, number, location, and quality 

of facilities providing access to 

recreational waters for all sizes of 

recreational boats. 

(c) Sport Fish Restoration—Aquatic 

Resource Education subprogram. 

Enhance the public’s understanding of 

water resources, aquatic life forms, and 

sport fishing, and develop responsible 

attitudes and ethics toward the aquatic 

environment. 

(d) Sport Fish Restoration—Outreach 

and Communications subprogram. 

(1) Improve communications with 

anglers, boaters, and the general public 

on sport fishing and boating 

opportunities. 

(2) Increase participation in sport 

fishing and boating. 

(3) Advance the adoption of sound 

fishing and boating practices including 

safety. 

(4) Promote conservation and 

responsible use of the aquatic resources 

of the United States. 

§ 80.52 What activities are ineligible for 

funding? 

The activities below are ineligible for 

funding under the Acts, except when 

necessary to carry out project purposes 

approved by the Regional Director. 

Other activities may also be ineligible as 

a result of Federal laws, regulations, or 

policies. 

(a) Law enforcement activities. 

(b) Public relations activities to 

promote the State fish and wildlife 

agency, other State administrative units, 

or the State. 

(c) Activities conducted for the 

primary purpose of producing income. 

(d) Activities, projects, or programs 

that promote or encourage opposition to 

regulated taking of fish, hunting, or the 

trapping of wildlife. 

§ 80.53 Are administrative costs for State 

central services eligible expenses? 

Yes. Administrative costs in the form 

of overhead or indirect costs for State 

central services outside of the State fish 

and wildlife agency are eligible 

expenses under the Acts and must 

follow an approved cost allocation plan. 

These expenses must not exceed 3 


cprice-sewell on DSK8KYBLC1PROD with PROPOSALS-1
Federal Register / Vol. 75, No. 111 / Thursday, June 10, 2010 / Proposed Rules 32891 

percent of the funds apportioned 

annually to the State under the Acts. 

§ 80.54 May an agency receive a grant to 

carry out part of a larger project? 

Yes. A State fish and wildlife agency 

may receive a grant to carry out part of 

a larger project involving other 

organizations working toward the same 

goal, but using different sources of 

funding. The agency may receive this 

funding only if the grant-funded part of 

the larger project: 

(a) Results in an identifiable outcome 

that is consistent with the purposes of 

the grant program; 

(b) Is substantial in character and 

design; 

(c) Meets the requirements of 

§§ 80.130 through 80.136 for any real 

property acquired under the grant and 

any capital improvements completed 

under the grant; and 

(d) Meets all other requirements of the 

grant program. 

§ 80.55 How does a proposed project 

qualify as substantial in character and 

design? 

A proposed project qualifies as 

substantial in character and design if it: 

(a) Describes a need within the 

purposes of the Acts; 

(b) Has objectives to meet the need 

and has methods suitable to meet the 

objectives; and 

(c) Demonstrates the use of accepted 

principles of fish and wildlife 

conservation and management, sound 

design, appropriate procedures, and the 

likelihood of benefits commensurate 

with project costs. 

Subpart F—Allocation of Funds by an 

Agency 

§ 80.60 What is the relationship between 

the Basic Hunter Education and Safety 

subprogram and the Enhanced Hunter 

Education and Safety program? 

The relationship between the Basic 

Hunter Education and Safety 

subprogram (Basic Hunter Education) 

and the Enhanced Hunter Education 

and Safety program (Enhanced Hunter 

Education) is as follows: 

Basic Hunter Education funds Enhanced Hunter Education funds 

(a) Which activities are eligible for funding? Those listed in § 80.50(b) ................................ Those listed in § 80.50(c). 

(b) How long are funds available for obligation? Two Federal fiscal years .................................. One Federal fiscal year. 

(c) What if funds are not fully obligated during 

the period of availability? 

The Service may use unobligated funds to 

carry out the Migratory Bird Conservation 

Act (16 U.S.C. 715 et seq.).

The Service reapportions unobligated funds to 

eligible States for the following fiscal year. 

States are eligible to receive funds only if 

their Basic Hunter Education funds were 

fully obligated in the preceding fiscal year. 

(d) What if funds are fully obligated during the 

period of availability? 

If Basic Hunter Education funds are fully obligated, the agency may use that fiscal 

year’s Enhanced Hunter Education funds 

for eligible activities related to basic hunter 

education, enhanced hunter education, or 

the Wildlife Restoration program.

No special provisions apply. 

§ 80.61 What requirements apply to funds 

for the Recreational Boating Access 

subprogram? 

The requirements of this section 

apply to allocating and obligating funds 

for the Recreational Boating Access 

subprogram. 

(a) A State fish and wildlife agency 

must allocate funds from each annual 

apportionment under the DingellJohnson Sport Fish Restoration Act for 

use in the subprogram. 

(b) Over each 5-year period, the total 

allocation for the subprogram in each of 

the Service’s geographic regions must 

average at least 15 percent of the Sport 

Fish Restoration funds apportioned to 

the States in that Region. As long as this 

requirement is met, an individual State 

agency may allocate more or less than 

15 percent of its annual apportionment 

in a single Federal fiscal year with the 

Regional Director’s approval. 

(c) The Regional Director calculates 

Regional-allocation averages for separate 

5-year periods that coincide with 

Federal fiscal years 2008–2012, 2013– 

2017, 2018–2022, and each subsequent 

5-year period. 

(d) If the total Regional allocation for 

a 5-year period is less than 15 percent, 

the State agencies may, in a 

memorandum of understanding, agree 

among themselves which of them will 

make the additional allocations to 

eliminate the Regional shortfall. 

(e) This paragraph applies if State fish 

and wildlife agencies do not agree on 

which of them will make additional 

allocations to bring the average Regional 

allocation to at least 15 percent over a 

5-year period. If the agencies do not 

agree: 

(1) The Regional Director may require 

States in the Region to make changes 

needed to achieve the minimum 15- 

percent Regional average before the end 

of the fifth year; and 

(2) The Regional Director must not 

require a State to increase or decrease its 

allocation if the State has allocated at 

least 15 percent over the 5-year period. 

(f) An agency must apply to use these 

allocated funds by the end of the fourth 

consecutive Federal fiscal year after the 

Federal fiscal year in which the funds 

first became available for allocation. 

(g) If the agency’s application to use 

these funds has not led to a Federal 

obligation by that time, these allocated 

funds become available for 

reapportionment among the State fish 

and wildlife agencies for the following 

fiscal year. 

§ 80.62 What limitations apply to spending 

on the Aquatic Resource Education and 

Outreach and Communications 

subprograms? 

The limitations apply in this section 

to State fish and wildlife agency 

spending on the Aquatic Resource 

Education and Outreach and 

Communications subprograms. 

(a) Each State’s fish and wildlife 

agencies may spend a maximum of 15 

percent of the annual amount 

apportioned to the State from the Sport 

Fish Restoration and Boating Trust 

Fund for activities in both subprograms. 

The 15-percent maximum applies to 

both subprograms as if they were one. 

(b) The 15-percent maximum for the 

subprograms does not apply to the 

Commonwealths of Puerto Rico and the 

Northern Mariana Islands, the District of 

Columbia, and the territories of Guam, 

the U.S. Virgin Islands, and American 

Samoa. These jurisdictions may spend 

more than 15 percent of their annual 

apportionments for both subprograms 

with the approval of the Regional 

Director. 


cprice-sewell on DSK8KYBLC1PROD with PROPOSALS-1
32892 Federal Register / Vol. 75, No. 111 / Thursday, June 10, 2010 / Proposed Rules 

§ 80.63 Does an agency have to allocate 

costs in multipurpose projects and 

facilities? 

Yes. A State fish and wildlife agency 

must allocate costs in multipurpose 

projects and facilities. A grant-funded 

project or facility is multipurpose if it 

carries out the purposes of: 

(a) A single grant program under the 

Acts; and 

(b) Another grant program under the 

Acts, a grant program not under the 

Acts, or an activity unrelated to grants. 

§ 80.64 How does an agency allocate costs 

in multipurpose projects and facilities? 

A State fish and wildlife agency must 

allocate costs in multipurpose projects 

based on the uses or benefits for each 

purpose that will result from the 

completed project or facility. The 

agency must describe the method used 

to allocate costs in multipurpose 

projects or facilities in the project 

statement included in the grant 

application. 

§ 80.65 Does an agency have to allocate 

funds between marine and freshwater 

fisheries projects? 

Yes. Each coastal State’s fish and 

wildlife agency must equitably allocate 

the funds apportioned under the 

Dingell-Johnson Sport Fish Restoration 

Act between projects having benefits for 

marine fisheries and projects having 

recreational benefits for freshwater 

fisheries. 

(a) The subprograms authorized by 

the Dingell-Johnson Sport Fish 

Restoration Act do not have to allocate 

funding in the same manner as long as 

the State fish and wildlife agency 

equitably allocates Dingell-Johnson 

Sport Fish Restoration funds as a whole 

between marine and freshwater 

fisheries. 

(b) The coastal States for purposes of 

this allocation are: 

(1) Alabama, Alaska, California, 

Connecticut, Delaware, Florida, Georgia, 

Hawaii, Louisiana, Maine, Maryland, 

Massachusetts, Mississippi, New 

Hampshire, New Jersey, New York, 

North Carolina, Oregon, Rhode Island, 

South Carolina, Texas, Virginia, and 

Washington; 

(2) The Commonwealths of Puerto 

Rico and the Northern Mariana Islands; 

and 

(3) The territories of Guam, the U.S. 

Virgin Islands, and American Samoa. 

§ 80.66 What requirements apply to 

allocation of funds between marine and 

freshwater fisheries projects? 

The requirements of this section 

apply to allocation of funds between 

marine and freshwater fisheries projects. 

(a) When a State fish and wildlife 

agency allocates and obligates funds it 

must meet the following requirements: 

(1) The ratio of marine projects to 

total funds must be identical to the ratio 

of resident marine anglers to the total 

number of resident anglers in the State; 

and 

(2) The ratio of freshwater fisheries 

projects to total funds must be identical 

to the ratio of resident freshwater 

anglers to the total number of resident 

anglers in the State. 

(b) A resident angler is one who fishes 

for recreational purposes in the same 

State where he or she maintains legal 

residence. 

(c) Agencies must use a statistically 

reliable method to determine the 

relative distribution of resident anglers 

in the State between those that fish in 

marine environments and those that fish 

in freshwater environments. Agencies 

must use the National Survey of 

Fishing, Hunting, and Wildlifeassociated Recreation or another 

statistically reliable survey or technique 

approved by the Director for this 

purpose. 

(d) If a State uses statistical sampling, 

it must sample at the earlier of the 

following: 

(1) Five years after the last statistical 

sample; or 

(2) The first certification period 

affected by any change in the licensing 

system that could affect the number of 

people who hold a paid license to fish. 

(e) The amounts allocated from each 

year’s apportionment do not necessarily 

have to result in an equitable allocation 

for each year. However, the amounts 

allocated over a variable period, not to 

exceed 3 years, must result in an 

equitable allocation between marine and 

freshwater fisheries projects. 

(f) Failure to allocate funds equitably 

between marine and freshwater fisheries 

projects may result in the agency 

becoming ineligible to use Sport Fish 

Restoration program funds until the 

agency demonstrates to the Director’s 

satisfaction that it has allocated funds 

equitably. 

§ 80.67 May an agency finance an activity 

from more than one annual apportionment? 

Yes. A State fish and wildlife agency 

may use funds from more than one 

annual apportionment to finance highcost projects, such as construction or 

acquisition of lands or interests in 

lands, including water rights. An agency 

may do this in either of the following 

ways: 

(a) Finance the entire cost of the 

acquisition or construction from a nonFederal funding source. The Service 

will reimburse funds to the agency in 

succeeding apportionment years 

according to a scheduled reimbursement 

plan approved by the Regional Director 

and subject to the availability of funds. 

(b) Negotiate an installment purchase 

or contract in which the agency pays 

periodic and specified amounts to the 

seller or contractor. The Service will 

reimburse or advance funds to the 

agency for each payment subject to the 

availability of funds. 

§ 80.68 What requirements apply to 

financing an activity from more than one 

annual apportionment? 

The following conditions apply to 

financing an activity from more than 

one annual apportionment: 

(a) A State fish and wildlife agency 

must agree to complete the project even 

if Federal funds are not available. If an 

agency does not complete the project, it 

must recover any expended Federal 

funds that did not result in 

commensurate wildlife or sport fishery 

benefits. The agency must then 

reallocate the recovered funds to 

approved projects in the same program. 

Agencies do not have to recover 

expended Federal funds for incomplete 

projects if the inability to complete the 

project is beyond the control of the 

agency and the State government. 

(b) The project statement included 

with the application must have a 

complete schedule of payments to 

complete the project. 

(c) Interest and other financing costs 

may be allowable subject to the 

restrictions in the applicable Federal 

Cost Principles. 

Subpart G—Application for a Grant 

§ 80.80 How does an agency apply for a 

grant? 

(a) An agency applies for a grant by 

sending the Regional Director: 

(1) Completed standard forms 

approved by the Office of Management 

and Budget for the grant application 

process; and 

(2) Information required for a 

comprehensive management system 

grant or a project-by-project grant. 

(b) The director of the State fish and 

wildlife agency or his or her designee 

must sign all standard forms submitted 

in the application process. 

(c) The agency must send copies of all 

standard forms and supporting 

information to the State Clearinghouse 

or Single Point of Contact before 

sending it to the Regional Director if the 

State maintains this process under 

Executive Order 12372, 

Intergovernmental Review of Federal 

Programs. 


cprice-sewell on DSK8KYBLC1PROD with PROPOSALS-1
Federal Register / Vol. 75, No. 111 / Thursday, June 10, 2010 / Proposed Rules 32893 

§ 80.81 What must an agency submit when 

applying for a comprehensive-managementsystem grant? 

A State fish and wildlife agency must 

submit all of the documents required by 

this section to the Regional Director 

when applying for a comprehensivemanagement-system grant. 

(a) The following standard application 

forms, available on the Federal Web site 

for electronic grant applications at 

www.grants.gov: 

(1) Application for Federal assistance; 

and 

(2) Assurances for nonconstruction, or 

assurances for construction programs, or 

both if applicable. Agencies may submit 

these forms annually to the Service’s 

Regional Divisions of Wildlife and Sport 

Fish Restoration for use with all 

applications for Federal assistance in 

the programs and subprograms under 

the Acts. 

(b) Supporting documentation 

explaining how the proposed work 

complies with the Acts, the provisions 

of this part, and other applicable laws 

and regulations. 

(c) A statement of the agency’s intent 

to carry out and fund part or all of its 

comprehensive management system 

through a grant. 

(d) A description of the agency’s 

comprehensive management system 

including inventory, strategic plan, 

operational plan, and evaluation. 

‘‘Inventory’’ refers to the process or 

processes that an agency uses to: 

(1) Determine actual, projected, and 

desired resource and asset status; and 

(2) Identify management problems, 

issues, needs, and opportunities. 

(e) A description of the State fish and 

wildlife agency program covered by the 

comprehensive management system. 

(f) Contact information for the State 

fish and wildlife agency employee who 

is directly responsible for the integrity 

and operation of the comprehensive 

management system. 

(g) A description of how the public 

can take part in decision making for the 

comprehensive management system. 

§ 80.82 What must an agency submit when 

applying for a project-by-project grant? 

A State fish and wildlife agency must 

submit all of the documents required by 

this section to the Regional Director 

when applying for a project-by-project 

grant: 

(a) Agencies must submit annually the 

following standard application forms for 

grant programs, available on the Federal 

Web site for electronic grant 

applications at www.grants.gov: 

(1) Application for Federal assistance; 

and 

(2) Assurances for nonconstruction, or 

assurances for construction programs, or 

both if applicable. Agencies may submit 

these forms annually to the Service’s 

Regional Division of Wildlife and Sport 

Fish Restoration for use with all 

applications for Federal assistance in 

the programs and subprograms under 

the Acts. 

(b) A project statement that describes 

each proposed project and provides the 

following information: 

(1) Need. Explain why the project is 

necessary and how it fulfills the 

purposes of the relevant Act. 

(2) Objectives. Base the objectives on 

the need. 

(3) Results or benefits expected. 

(4) Approach. Describe the methods 

used to achieve the stated objectives. 

This information must demonstrate that 

the agency will use sound design, 

appropriate procedures, and accepted 

fish and wildlife conservation, 

management, or research principles. 

(5) Useful life. Reference the method 

used to determine the useful life of a 

capital improvement with a value 

greater than $100,000. 

(6) Geographic location. 

(7) Principal investigator. Record the 

principal investigator’s name, work 

address, and work telephone number for 

research projects only. 

(8) Program income. The agency must: 

(i) Estimate the amount of program 

income that the project is likely to 

generate. 

(ii) Indicate the method or 

combination of methods (deduction, 

addition, or matching) of applying 

program income to Federal and nonFederal outlays. 

(iii) Request the Regional Director’s 

approval for the matching method. 

Describe how the agency proposes to 

use the program income and the 

expected results. Describe the essential 

need for using program income as 

match. 

(iv) Indicate whether the agency 

wants to treat program income that it 

earns after the grant period as license 

revenue or additional funding for 

purposes consistent with the grant or 

program. 

(v) Indicate whether the agency wants 

to treat program income that the 

subgrantee earns as license revenue, 

additional funding for the purposes 

consistent with the grant or subprogram, 

or income subject only to the terms of 

the subgrant agreement. 

(9) Costs by project and subaccount. 

Show how the project will yield benefits 

that address the need commensurate 

with estimated project costs. 

(10) Multipurpose projects. Describe 

the method for allocating costs in 

multipurpose projects and facilities as 

described in §§ 80.63 and 80.64. 

(11) Relationship with other grants. 

Describe the relationship between this 

project and other work funded by 

Federal grants that is planned, 

anticipated, or underway. 

(12) Timeline. Describe significant 

milestones in completing the project 

and any accomplishments to date. 

(13) Multiyear projects. Include a 

schedule of payments to finish the 

project if an agency proposes to use 

funds from two or more annual 

apportionments to fund construction or 

the acquisition of lands or interests in 

lands, including water rights. 

(14) General. Demonstrate in the 

information described under paragraphs 

(b)(1) through (b)(13) of this section that 

the proposed activities are: 

(i) Eligible for funding under the 

program; 

(ii) Substantial in character and 

design; and 

(iii) Comply with the Acts, this part, 

and other applicable laws and 

regulations. 

§ 80.83 What is the Federal share of 

allowable costs? 

(a) The Regional Director must 

provide at least 10 percent and no more 

than 75 percent of allowable costs 

incurred under a grant-funded project to 

the fish and wildlife agencies of the 50 

States. 

(1) An agency proposes the specific 

Federal share by estimating the Federal 

and match dollars on the application for 

Federal assistance. 

(2) The Regional Director may waive 

the 10-percent minimum Federal share 

of allowable costs if an agency requests 

a waiver and provides compelling 

reasons to justify it. 

(b) The Regional Director may provide 

funds to pay at least 75 percent and up 

to 100 percent of allowable costs 

incurred under a grant-funded project in 

the Sport Fish Restoration program to 

the District of Columbia’s agency 

responsible for sport fishing. The 

Regional Director decides which 

percentage within the 75–100 percent 

range is fair, just, and equitable for the 

Federal share. 

(c) The Regional Director may provide 

funds to pay at least 75 percent and up 

to 100 percent of allowable costs 

incurred for a grant-funded project to a 

fish and wildlife agency of the 

Commonwealths of Puerto Rico and the 

Northern Mariana Islands and the 

territories of Guam, the U.S. Virgin 

Islands, and American Samoa. The 

Federal share may be affected by the 

waiver process described at § 80.84(c). 


cprice-sewell on DSK8KYBLC1PROD with PROPOSALS-1
32894 Federal Register / Vol. 75, No. 111 / Thursday, June 10, 2010 / Proposed Rules 

§ 80.84 How does the Service establish the 

non-Federal share of allowable costs? 

(a) To establish the non-Federal share 

of a grant-funded project for the 50 

States, the Regional Director approves 

an application for Federal assistance in 

which the State fish and wildlife agency 

proposes the specific non-Federal share 

by estimating the Federal and match 

dollars, consistent with § 80.83(a). 

(b) To establish the non-Federal share 

of a grant-funded project for the District 

of Columbia and the Commonwealth of 

Puerto Rico, the Regional Director: 

(1) Decides which percentage within 

the 75–100 percent range is fair, just, 

and equitable for the Federal share; 

(2) Subtracts the Federal share 

percentage from 100 percent to 

determine the percentage of non-Federal 

share; and 

(3) Applies the percentage of nonFederal share to the allowable costs of 

a grant-funded project to determine the 

match requirement. 

(c) To establish the non-Federal share 

of a grant-funded project for the 

Commonwealth of the Northern Mariana 

Islands and the territories of Guam, the 

U.S. Virgin Islands, and American 

Samoa, the Regional Director must first 

calculate a preliminary percentage of 

non-Federal share in the same manner 

as described in paragraph (b) of this 

section. According to 48 U.S.C. 1469(a), 

the Regional Director must then waive 

the first $200,000 of the preliminary 

match amount to establish the final nonFederal share for each project that 

includes funding from only one of the 

three grant programs under the Acts. If 

a project includes funding from two or 

all three grant programs under the Acts, 

the Regional Director must waive the 

first $200,000 of the preliminary match 

amount in each of these programs. 

§ 80.85 What requirements apply to 

match? 

The requirements that apply to match 

include: 

(a) Match may be in the form of cash 

or in-kind contributions. 

(b) Unless authorized by Federal law, 

the State fish and wildlife agency or any 

other entity must not: 

(1) Use Federal funds or the value of 

a third-party in-kind contribution 

acquired with Federal funds; or 

(2) Use the cost or value of an in-kind 

contribution to satisfy a match 

requirement if the cost or value has been 

or will be used to satisfy a match 

requirement of another Federal grant, 

cooperative agreement, or contract. 

(c) The agency must fulfill match 

requirements at the: 

(1) Grant level if the grant has funds 

from a single subaccount; or 

(2) Subaccount level if the grant has 

funds from more than one subaccount. 

Subpart H—General Grant 

Administration 

§ 80.90 What are the responsibilities of an 

agency? 

A State fish and wildlife agency as a 

grantee is responsible for all of the 

actions required by this section. 

(a) Supervision to ensure that the 

work follows the terms of the grant, 

including: 

(1) Proper and effective use of funds; 

(2) Maintenance of records; 

(3) Submission of complete and 

accurate Federal financial reports and 

performance reports by the due dates in 

the terms and conditions of the grant; 

and 

(4) Regular inspection and monitoring 

of work in progress. 

(b) Selection and supervision of 

personnel to ensure that: 

(1) Adequate and competent 

personnel are available to complete the 

grant-funded work on schedule; and 

(2) Project personnel meet time 

schedules, accomplish the proposed 

work, meet objectives, and submit the 

required reports. 

(c) Control of all assets acquired 

under the grant to ensure that they serve 

the purpose for which acquired 

throughout their useful life. 

(d) Compliance with all applicable 

Federal, State, and local laws and 

regulations. 

(e) Settlement of all procurementrelated contractual and administrative 

issues. 

§ 80.91 What is a Federal obligation of 

funds and how does it occur? 

An obligation of funds is a legal 

liability to disburse funds immediately 

or at a later date as a result of a series 

of actions. All of these actions must 

occur to obligate funds for the formulabased grant programs authorized by the 

Acts: 

(a) The Service sends an annual 

certificate of apportionment to a State 

fish and wildlife agency, which tells the 

agency how much funding is available 

according to formulas in the Acts. 

(b) The agency sends the Regional 

Director an application for Federal 

assistance to use the funds available to 

it under the Acts and commits to 

provide the required match to carry out 

projects that are substantial in character 

and design. 

(c) The Regional Director notifies the 

agency that he or she approves the 

application for Federal assistance and 

states the terms and conditions of the 

grant. 

(d) The agency accepts the terms and 

conditions of the grant in one of the 

following ways: 

(1) Starts work on the grant-funded 

project by placing an order, entering 

into a contract, awarding a subgrant, 

receiving goods or services, or otherwise 

incurring allowable costs during the 

grant period that will require payment 

immediately or in the future; 

(2) Draws down funds for an 

allowable activity under the grant; or 

(3) Sends the Regional Director a 

letter, fax, or e-mail accepting the terms 

and conditions of the grant. 

§ 80.92 How long are funds available for a 

Federal obligation? 

Funds are available for a Federal 

obligation during the fiscal year for 

which they are apportioned and until 

the close of the following fiscal year 

except for funds in the Enhanced 

Hunter Education and Safety program 

and the Recreational Boating Access 

subprogram. See §§ 80.60 and 80.61 for 

the length of time that funds are 

available in this program and 

subprogram. 

§ 80.93 When may an agency incur costs 

under a grant? 

A State fish and wildlife agency may 

incur costs under a grant from the 

effective date of the grant period to the 

end of the grant period except for 

preagreement costs that meet the 

conditions in § 80.94. 

§ 80.94 May an agency incur costs before 

the effective date of the grant period? 

(a) Yes. A State fish and wildlife 

agency may incur costs of a proposed 

project before the effective date of the 

grant period (preagreement costs). 

However, an agency has no assurance of 

reimbursement for preagreement costs 

until the Regional Director approves an 

award that incorporates a proposal 

demonstrating that the preagreement 

costs conform to all of the conditions in 

paragraph (b) of this section. The agency 

cannot receive reimbursement for these 

costs until after the effective date of the 

grant. 

(b) Preagreement costs must meet the 

following requirements: 

(1) The costs are necessary and 

reasonable for accomplishing the grant 

objectives; 

(2) The Regional Director would have 

approved the costs if the State fish and 

wildlife agency incurred them during 

the grant period; 

(3) The agency incurs these costs in 

anticipation of the grant and in 

conformity with the negotiation of the 

award with the Regional Director; 

(4) The activities associated with the 

preagreement costs comply with all 


cprice-sewell on DSK8KYBLC1PROD with PROPOSALS-1
Federal Register / Vol. 75, No. 111 / Thursday, June 10, 2010 / Proposed Rules 32895 

laws, regulations, and policies 

applicable to a grant-funded project; and 

(5) The agency does not complete the 

project before the grant’s effective date, 

except when the agency can 

demonstrate to the Regional Director 

that doing so is necessary either to take 

advantage of temporary circumstances 

favorable to the project or to meet legal 

deadlines. 

§ 80.95 How does an agency receive 

Federal grant funds? 

(a) A State fish and wildlife agency 

may receive Federal grant funds through 

either: 

(1) A request for reimbursement; or 

(2) A request for an advance of funds 

if the agency maintains or demonstrates 

that it will maintain procedures to 

minimize time between transfer of funds 

and disbursement by the agency or its 

subgrantee. 

(b) An agency must use the following 

procedures to receive a reimbursement 

or an advance of funds: 

(1) Request funds through an 

electronic payment system designated 

by the Regional Director; or 

(2) Request funds on a standard form 

for that purpose only if the agency is 

unable to use the electronic payment 

system. 

(c) The Regional Director will 

reimburse or advance funds only to the 

office or official designated by the 

agency and authorized by State law to 

receive public funds for the State. 

(d) All payments are subject to final 

determination of allowability based on 

audit or a Service review. The State fish 

and wildlife agency must repay any 

overpayment as directed by the Regional 

Director. 

(e) The Regional Director may 

withhold payments pending receipt of 

all required reports or documentation 

for the project. 

§ 80.96 May an agency request funds in 

excess of the Federal share? 

(a) A State fish and wildlife agency 

must not request Federal grant funds if 

the requested funds would exceed the 

Federal share of the total 

reimbursements and requested advances 

from the beginning of the grant period 

through the current request. 

(b) An agency may request Federal 

grant funds for construction work, 

including land acquisition, even if the 

requested funds would temporarily 

violate the prohibition in paragraph (a) 

of this section under the following 

conditions: 

(1) The Regional Director and the 

director of the State fish and wildlife 

agency jointly decide that the request is 

appropriate; and 

(2) The agency will pay its 

proportional share of the project’s total 

allowable costs before it submits the 

final Federal financial report. 

§ 80.97 May an agency barter goods or 

services to carry out a grant-funded 

project? 

Yes. A State fish and wildlife agency 

may barter to carry out a grant-funded 

project. A barter transaction is the 

exchange of goods or services for other 

goods or services without the use of 

cash. Barter transactions are subject to 

the Cost Principles at 2 CFR part 220, 

2 CFR part 225, and 2 CFR part 230. 

§ 80.98 How must an agency report barter 

transactions? 

(a) A State fish and wildlife agency 

must follow the requirements in the 

following table when reporting barter 

transactions in the Federal financial 

report. 

If . . . Then the agency . . . 

(1) The goods or services exchanged have the same market value ...... (i) Does not have to report bartered goods or services as program income or grant expenses in the Federal financial report; and 

(ii) Must disclose that barter transactions occurred and state what was 

bartered in the Remarks section of the report. 

(2) The market value of the goods or services relinquished exceeds the 

market value of the goods and services received.

Must report the difference in market value as grant expenses in the 

Federal financial report. 

(3) The market value of the goods or services received exceeds the 

market value of the goods and services relinquished.

Must report the difference in market value as program income in the 

Federal financial report. 

(4) The barter transaction was part of a cooperative farming or grazing 

arrangement meeting the requirements in paragraph (b) of this section.

(i) Does not have to report bartered goods or services as program income or grant expenses in the Federal financial report; and 

(ii) Must disclose that barter transactions occurred and identify what 

was bartered in the Remarks section of the Federal financial report. 

(b) For purposes of paragraph (a)(4) of 

this section, cooperative farming or 

grazing is an arrangement in which an 

agency: 

(1) Allows an agricultural producer to 

farm or graze livestock on land under 

the control of the agency; and 

(2) Designs the farming or grazing to 

advance the fish and wildlife 

management objectives of the agency. 

§ 80.99 Are symbols available to identify 

projects? 

Yes. The following distinctive 

symbols are available to identify 

projects funded by the Acts and 

products on which taxes and duties 

have been collected to support the Acts: 

(a) The symbol of the PittmanRobertson Wildlife Restoration Act is 

below. 

(b) The symbol of the Dingell-Johnson 

Sport Fish Restoration Act is below. 

(c) The symbol of the Acts when used 

in combination is below. 


cprice-sewell on DSK8KYBLC1PROD with PROPOSALS-1EP10JN10.010</GPH> EP10JN10.011</GPH>
32896 Federal Register / Vol. 75, No. 111 / Thursday, June 10, 2010 / Proposed Rules 

§ 80.100 Do agencies have to display the 

symbols in this part on completed projects? 

No. State fish and wildlife agencies do 

not have to display the symbols in 

§ 80.99 on projects completed under the 

Acts. However, the Service requests 

agencies to display the appropriate 

symbol following these requirements or 

guidelines: 

(a) Agencies may display the 

appropriate symbol(s) on: 

(1) Areas such as wildlife 

management areas, shooting ranges, and 

sportfishing and boating access facilities 

that were acquired, developed, 

operated, or maintained with funds 

authorized by the Acts; and 

(2) Printed or Web-based material or 

other visual representations of project 

accomplishments. 

(b) Agencies may require subgrantees 

to display the appropriate symbol or 

symbols in the places described in 

paragraph (a) of this section. 

(c) The Director or Regional Director 

may authorize agencies to use the 

symbols in a manner other than as 

described in paragraph (a) of this 

section. 

(d) The Director or Regional Director 

may authorize other persons, 

organizations, agencies, or governments 

to use the symbols for purposes related 

to the Acts by entering into a written 

agreement with the user. An applicant 

must state how it intends to use the 

symbol(s), to what it will attach the 

symbol(s), and the relationship to the 

specific Act. 

(e) The user of the symbol(s) must 

indemnify and defend the United States 

and hold it harmless from any claims, 

suits, losses, and damages from: 

(1) Any allegedly unauthorized use of 

any patent, process, idea, method or 

device by the user in connection with 

its use of the symbol(s), or any other 

alleged action of the user; and 

(2) Any claims, suits, losses, and 

damages arising from alleged defects in 

the articles or services associated with 

the symbol(s). 

(f) The appearance of the symbol(s) on 

projects or products indicates that the 

manufacturer of the product pays excise 

taxes in support of the respective Act(s), 

and that the project was funded under 

the respective Act(s) (26 U.S.C. 4161, 

4162, 4181, 4182, 9503, and 9504). The 

Service and the Department of the 

Interior make no representation or 

endorsement whatsoever by the display 

of the symbol(s) as to the quality, utility, 

suitability, or safety of any product, 

service, or project associated with the 

symbol(s). 

(g) No one may use any of the symbols 

in any other manner unless the Director 

or Regional Director authorizes it. 

Unauthorized use of the symbol(s) is a 

violation of 18 U.S.C. 701 and subjects 

the violator to possible fines and 

imprisonment. 

Subpart I—Program Income 

§ 80.120 What is program income? 

(a) Program income is gross income 

received by the grantee or subgrantee 

and earned only as a result of the grant. 

(b) Program income includes revenue 

from any of the following: 

(1) Services performed under a grant; 

(2) Use or rental of real or personal 

property acquired, constructed, or 

managed with grant funds; 

(3) Payments by concessionaires or 

contractors under an arrangement with 

the agency or subgrantee to provide a 

service in support of grant objectives on 

real property acquired, constructed, or 

managed with grant funds; 

(4) Sale of items produced under a 

grant; 

(5) Royalties and license fees for 

copyrighted material, patents, and 

inventions developed as a result of a 

grant; and 

(6) Sale of a product of mining, 

drilling, forestry, or agriculture on real 

property acquired or directly managed 

with grant funds. 

(c) Program income does not include 

any of the following: 

(1) License revenue collected by the 

agency for hunting or fishing, including 

fees for special-area access or recreation; 

(2) Interest on grant funds, rebates, 

credits, discounts, or refunds; 

(3) Sales receipts retained by 

concessionaires or contractors under an 

arrangement with the agency to provide 

a service in support of grant objectives 

on real property acquired, constructed, 

or managed with grant funds; 

(4) Cash received by the agency or 

volunteer hunter education instructors 

to cover incidental costs of a hunter 

education class; 

(5) Cooperative farming or grazing 

arrangements as described at § 80.98; or 

(6) Proceeds from the sale of an 

interest in real property such as fee title, 

easement, mineral rights, gas and oil 

rights, water rights, or a leasehold 

interest for a lease with a term 10 years 

or longer. 

§ 80.121 May an agency earn program 

income? 

Yes. A State fish and wildlife agency 

may earn income from activities 

incidental to the grant purposes as long 

as producing income is not a primary 

purpose. The agency must account for 

income and interest received from these 

activities in the project records and 

dispose of it according to the terms of 

the grant. 

§ 80.122 May an agency deduct the costs 

of generating program income from gross 

income? 

(a) A State fish and wildlife agency 

may deduct its costs of generating 

program income from gross income 

when it calculates program income as 

long as the agency does not do any of 

the following: 

(1) Pay these costs with Federal or 

matching cash under a grant or with any 

Federal cash unrelated to a grant; 

(2) Cover these costs by using services 

or real or personal property received as 

matching in-kind contributions under a 

Federal grant; or 

(3) Cover these costs by accepting 

volunteer services, donated services, or 

donations of real or personal property. 

(b) The agency may deduct the 

following costs, but other costs may also 

qualify for deduction: 

(1) Maintenance or operation of 

facilities that generate program income 

if a grant funded the construction or 

operation of the facility; 

(2) Publication of a pamphlet or book 

for sale if a grant funded the writing of 

the book or pamphlet or the research 

that led to publication of the book or 

pamphlet; and 

(3) Costs of harvesting timber on lands 

if a grant funded acquisition of the land, 

direct management of the land, planting 

the trees, or managing the forest. 

§ 80.123 How may an agency use program 

income? 

(a) A State fish and wildlife agency 

may choose any of the three methods 

listed in paragraph (b) of this section for 

applying program income to Federal 

and non-Federal outlays. The agency 

may also use a combination of these 

methods. The method or methods that 

the agency chooses will apply to the 

program income that it earns during the 

grant period and to the program income 

that any subgrantee earns during the 

grant period. The agency must indicate 

the method that it wants to use in the 

project statement that it submits with 

each application for Federal assistance. 

(b) The three methods for applying 

program income to Federal and nonFederal outlays are shown in the 

following table: 


cprice-sewell on DSK8KYBLC1PROD with PROPOSALS-1EP10JN10.012</GPH>
Federal Register / Vol. 75, No. 111 / Thursday, June 10, 2010 / Proposed Rules 32897 

Method Requirements for using the method 

(1) Deduction ............. (i) The agency must deduct the program income from total allowable costs to determine the net allowable costs. 

(ii) The agency must use program income for current costs under the grant unless the Regional Director authorizes otherwise. 

(iii) If the agency does not indicate the method that it wants to use in the project statement, then it must use the deduction method. 

(2) Addition ................ (i) The agency may add the program income to the Federal and matching funds under the grant. 

(ii) The agency must use the program income for the purposes of the grant and under the terms of the grant. 

(3) Matching .............. (i) The agency must request the Regional Director’s approval in the project statement. 

(ii) The agency must explain in the project statement the need for using program income as match, how it proposes to 

use the program income as match, and the expected results. 

(iii) The Regional Director may approve the use of the matching method if the requirements of paragraph (c) of this section are met. 

(c) The Regional Director may 

approve the use of the matching method 

if the proposed use of the program 

income would: 

(1) Be consistent with the intent of the 

applicable Act or Acts; and 

(2) Result in at least one of the 

following: 

(i) The agency substitutes program 

income for at least some of the match 

that it would otherwise have to provide, 

and then uses this saved match for other 

fish or wildlife-related projects; 

(ii) The agency substitutes program 

income for at least some of the 

apportioned Federal funds, and then 

uses the saved Federal funds for 

additional eligible activities under the 

program; or 

(iii) A net benefit to the program. 

§ 80.124 How may an agency use 

unexpended program income? 

If a State fish and wildlife agency has 

unexpended program income on its 

final Federal financial report, the agency 

may use the income under a subsequent 

grant. This subsequent grant must have 

purposes consistent with the grant that 

generated the program income. 

§ 80.125 How must an agency treat income 

that it earns after the grant period? 

(a) The State fish and wildlife agency 

must treat program income that it earns 

after the grant period as either: 

(1) License revenue for the 

administration of the agency; or 

(2) Additional funding for purposes 

consistent with the grant or the 

program. 

(b) The agency must indicate its 

choice of one of the alternatives in 

paragraph (a) of this section in the 

project statement that the agency 

submits with each application for 

Federal assistance. If the agency does 

not record its choice in the project 

statement, the agency must treat the 

income earned after the grant period as 

license revenue. 

§ 80.126 How must an agency treat income 

earned by a subgrantee after the grant 

period? 

(a) The State fish and wildlife agency 

must treat income earned by a 

subgrantee after the grant period as: 

(1) License revenue for the 

administration of the agency; 

(2) Additional funding for purposes 

consistent with the grant or the 

program; or 

(3) Income subject only to the terms 

of the subgrant agreement and any 

subsequent contractual agreements 

between the agency and the subgrantee. 

(b) The agency must indicate its 

choice of one of the above alternatives 

in the project statement that it submits 

with each application for Federal 

assistance. If the agency does not 

indicate its choice in the project 

statement, the subgrantee does not have 

to account for any income that it earns 

after the grant period unless required to 

do so in the subgrant agreement or in 

any subsequent contractual agreement. 

Subpart J—Real Property 

§ 80.130 Does an agency have to hold title 

to real property acquired under a grant? 

Yes. A State fish and wildlife agency 

must hold title to an ownership interest 

in real property acquired under a grant 

to the extent possible under State law. 

(a) If State law does not authorize the 

fish and wildlife agency to hold the title 

to real property, the State or one of its 

administrative units may hold the title 

if the agency has the authority to 

manage the real property for the 

purpose authorized under the grant. The 

agency, the State, or another 

administrative unit of State government 

must not hold title to an undivided 

ownership interest in the real property 

concurrently with a subgrantee or any 

other entity. 

(b) An ownership interest is an 

interest in real property that gives the 

person who holds it the right to use and 

occupy a parcel of land or water and to 

exclude others. Fee simple and 

leasehold interests are ownership 

interests. An easement is not an 

ownership interest. Another name for an 

ownership interest is a possessory 

interest. 

§ 80.131 Does an agency have to hold an 

easement acquired under a grant? 

Yes. A State fish and wildlife agency 

must hold an easement acquired under 

a grant, but it may share certain rights 

or responsibilities as described in 

paragraph (b) of this section if 

consistent with State law. 

(a) Any sharing of rights or 

responsibilities does not diminish the 

agency’s responsibility to manage the 

easement for its authorized purpose. 

(b) The agency may share holding or 

enforcement of an easement only in the 

following situations: 

(1) The State or another 

administrative unit of State government 

may hold an easement on behalf of its 

fish and wildlife agency. 

(2) The agency may subgrant the 

concurrent right to hold the easement to 

a nonprofit organization or to an agency 

of a local or tribal government. 

(3) The agency may subgrant a right 

of enforcement to a nonprofit 

organization or to a local or tribal 

government. This right of enforcement 

may allow the subgrantee to have 

reasonable access and entry to property 

protected under the easement for 

purposes of inspection, monitoring, and 

enforcement. The subgrantee’s right of 

enforcement must not supersede and 

must be concurrent with the agency’s 

right of enforcement. 

§ 80.132 Does an agency have to control 

the land or water where it completes capital 

improvements? 

Yes. A State fish and wildlife agency 

must control the land or water or both 

on which it completes capital 

improvements under a grant. An agency 

must exercise this control through fee 

title, lease, or another legally binding 

agreement. Control must be adequate for 

the protection, maintenance, and use of 

the improvement for its authorized 

purpose during its useful life. 


cprice-sewell on DSK8KYBLC1PROD with PROPOSALS-1
32898 Federal Register / Vol. 75, No. 111 / Thursday, June 10, 2010 / Proposed Rules 

§ 80.133 Does an agency have to maintain 

acquired or completed capital 

improvements? 

Yes. The State fish and wildlife 

agency must maintain capital 

improvements acquired or completed 

under a grant to ensure that each capital 

improvement continues to serve its 

authorized purpose during its useful 

life. 

§ 80.134 How must an agency use real 

property? 

The State fish and wildlife agency 

must use real property that is acquired, 

completed, operated, or maintained 

under a grant for the purpose authorized 

in the grant. This requirement applies to 

a capital improvement only during its 

useful life. The State agency may allow 

secondary uses of real property 

acquired, completed, operated, or 

maintained under a grant if the 

secondary uses do not interfere with its 

authorized purpose. 

§ 80.135 What if an agency allows a use of 

real property that interferes with the 

authorized purpose? 

(a) When a State fish and wildlife 

agency allows a use of real property that 

interferes with its authorized purpose 

under a grant, the agency must fully 

restore the real property to its 

authorized purpose. If it cannot fully 

restore the real property to its 

authorized purpose under the grant, the 

agency must replace the real property 

using non-Federal funds. Replacement 

property must be of equal value at 

current market prices and must have 

fish, wildlife, and public-use benefits 

consistent with the purposes of the 

original grant. 

(b) The State may have a reasonable 

time, up to 3 years from the date of 

notification by the Regional Director, to 

restore the real property to its 

authorized purpose or acquire 

replacement property. If the State does 

not restore the real property to its 

authorized purpose or acquire 

replacement property within 3 years, 

the State becomes ineligible to receive 

new grants in the program or programs 

that funded the original acquisition. 

§ 80.136 When is a use of real property 

that interferes with the authorized purpose 

considered a diversion? 

If the State fish and wildlife agency 

allows a use of grant-funded real 

property that interferes with the real 

property’s purpose as authorized under 

a grant, a diversion occurs only if both 

of the following conditions apply: 

(a) The agency used license revenue 

as match for the grant; and 

(b) The interfering use has purposes 

other than management of the fish- and 

wildlife-related resources for which the 

agency has authority under State law. 

§ 80.137 What if real property is no longer 

useful or needed for its original purpose? 

If the director of the State fish and 

wildlife agency and the Regional 

Director jointly decide that grant-funded 

real property is no longer useful or 

needed for its original purpose under 

the grant, the director of the agency 

must: 

(a) Propose another eligible purpose 

for the real property under the grant 

program and ask the Regional Director 

to approve this proposed purpose; or 

(b) Request disposition instructions 

for the real property. 

Subpart K—Amendments and Appeals 

§ 80.150 How does an agency ask for an 

amendment of a grant? 

(a) A State fish and wildlife agency 

must ask for an amendment of a grant 

by sending the Service the following 

documents: 

(1) The standard form approved by 

the Office of Management and Budget as 

an application for Federal assistance. 

The agency may use this form to update 

or request a change in the information 

that it submitted in an approved 

application. The director of the agency 

or his or her designee must sign this 

form. 

(2) A statement attached to the 

application for Federal assistance that 

explains: 

(i) How the requested amendment 

would affect the information that the 

agency submitted with the original grant 

application; and 

(ii) Why the requested amendment is 

necessary. 

(b) An agency must send any 

amendments of scope to the State 

Clearinghouse or Single Point of Contact 

if the State maintains this process under 

Executive Order 12372, 

Intergovernmental Review of Federal 

Programs. 

§ 80.151 May an agency appeal a 

decision? 

An agency may appeal the Director’s 

or Regional Director’s decision on any 

matter subject to this part. 

(a) The State fish and wildlife agency 

must send the appeal to the Director 

within 30 days of the date that the 

Director or Regional Director mails or 

otherwise informs an agency of a 

decision. 

(b) The agency may appeal the 

Director’s decision under paragraph (a) 

of this section to the Secretary within 30 

days of the date that the Director mailed 

the decision. An appeal to the Secretary 

must follow procedures in title 43, part 

4, subpart G, of the Code of Federal 

Regulations, ‘‘Special Rules Applicable 

to Other Appeals and Hearings.’’ 

Subpart L—Information Collection 

§ 80.160 What are the information 

collection requirements of this part? 

(a) This part requires each State fish 

and wildlife agency to provide the 

following information to the Service. 

The State agency must: 

(1) Certify the number of people who 

have paid licenses to hunt and the 

number of people who have paid 

licenses to fish in a State during the 

State-specified certification period 

(OMB control number 1018–0007). 

(2) Provide information for a grant 

application on a Government-wide 

standard form (OMB control number 

4040–0002). 

(3) Certify on a Government-wide 

standard form that it: 

(i) Has the authority to apply for the 

grant; 

(ii) Has the capability to complete the 

project; and 

(iii) Will comply with the laws, 

regulations, and policies applicable to 

construction projects, nonconstruction 

projects, or both (OMB control numbers 

4040–0007 and 4040–0009). 

(4) Provide a project statement that 

describes the need, objectives, results 

expected, approach, location, 

explanation of costs, and other 

information that demonstrates that the 

project is eligible under the Acts and 

meets the requirements of the Federal 

Cost Principles and the laws, 

regulations, and policies applicable to 

the grant program (OMB control number 

1018–0109). 

(5) Change or update information 

provided to the Service in a previously 

approved application (OMB control 

number 1018–0109). 

(6) Report on a Government-wide 

standard form on the status of Federal 

grant funds and any program income 

earned (OMB control number 0348– 

0061). 

(7) Report as a grantee on progress in 

completing the grant-funded project 

(OMB control number 1018–0109). 

(b) The authorizations for information 

collection under this part are in the Acts 

and in 43 CFR part 12, subpart C, 

‘‘Uniform Administrative Requirements 

for Grants and Cooperative Agreements 

to State and Local Governments.’’ 

(c) Send comments on the information 

collection requirements to: U.S. Fish 

and Wildlife Service, Information 

Collection Clearance Officer, 4401 North 

Fairfax Drive, Suite 222, Arlington, VA 

22203. 


cprice-sewell on DSK8KYBLC1PROD with PROPOSALS-1
Federal Register / Vol. 75, No. 111 / Thursday, June 10, 2010 / Proposed Rules 32899 

Dated: March 23, 2010. 

Will Shafroth, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. 2010–13817 Filed 6–9–10; 8:45 am] 

BILLING CODE 4310–55–P 


cprice-sewell on DSK8KYBLC1PROD with PROPOSALS-1