[Federal Register Volume 76, Number 147 (Monday, August 1, 2011)]
[Rules and Regulations]
[Pages 46150-46171]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-19206]



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Vol. 76

Monday,

No. 147

August 1, 2011

Part IV





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 80





Financial Assistance: Wildlife Restoration, Sport Fish Restoration, 
Hunter Education and Safety; Final Rule

  Federal Register / Vol. 76, No. 147 / Monday, August 1, 2011 / Rules 
and Regulations  

[[Page 46150]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 80

[Docket No. FWS-R9-WSR-2009-0088; 91400-5110-POLI-7B; 91400-9410-POLI-
7B]
RIN 1018-AW65


Financial Assistance: Wildlife Restoration, Sport Fish 
Restoration, Hunter Education and Safety

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, are revising 
regulations governing the Wildlife Restoration, Sport Fish Restoration, 
and Hunter Education and Safety (Enhanced Hunter Education and Safety) 
financial assistance programs. We proposed a revision of these 
regulations on June 10, 2010, to address changes in law, regulation, 
policy, technology, and practice during the past 25 years. We also 
proposed a clarification of some provisions of the issue-specific final 
rule that we published on July 24, 2008. This final rule simplifies 
specific requirements of the establishing authorities of the three 
programs and clarifies terms in those authorities as well as terms 
generally used in grant administration. We organized the final rule to 
follow the life cycle of a grant, and we reworded and reformatted the 
regulations following Federal plain language policy and current 
rulemaking guidance.

DATES: The final rule is effective on August 31, 2011.

FOR FURTHER INFORMATION CONTACT: Joyce Johnson, Wildlife and Sport Fish 
Restoration Program, Division of Policy and Programs, U.S. Fish and 
Wildlife Service, 703-358-2156.

SUPPLEMENTARY INFORMATION: 

Background

    This final rule revises title 50 part 80 of the Code of Federal 
Regulations (CFR), which is ``Administrative Requirements, Pittman-
Robertson Wildlife Restoration and Dingell-Johnson Sport Fish 
Restoration Acts.'' The primary users of these regulations are the fish 
and wildlife agencies of the 50 States, the Commonwealths of Puerto 
Rico and the Northern Mariana Islands, the District of Columbia, and 
the territories of Guam, the U.S. Virgin Islands, and American Samoa. 
We use ``State'' or ``States'' in this document to refer to any or all 
of these jurisdictions, except the District of Columbia for purposes of 
the Pittman-Robertson Wildlife Restoration Act and the two grant 
programs and one subprogram under its authority, because the Act does 
not authorize funding for the District. The term, ``the 50 States,'' 
applies only to the 50 States of the United States. It does not include 
the Commonwealths of Puerto Rico and the Northern Mariana Islands, the 
District of Columbia, or the territories of Guam, the U.S. Virgin 
Islands, and American Samoa.
    These regulations tell States how they may: (a) Use revenues from 
hunting and fishing licenses; (b) receive annual apportionments from 
the Federal Aid to Wildlife Restoration Fund and the Sport Fish 
Restoration and Boating Trust Fund; (c) receive financial assistance 
from the Wildlife Restoration program, the Basic Hunter Education and 
Safety subprogram, and the Enhanced Hunter Education and Safety 
program; and (d) receive financial assistance from the Sport Fish 
Restoration program, the Recreational Boating Access subprogram, the 
Aquatic Resources Education subprogram, and the Outreach and 
Communications subprogram. These programs provide financial assistance 
to State fish and wildlife agencies to: (a) Restore or manage wildlife 
and sport fish; (b) provide hunter-education, hunter-development, and 
hunter-safety programs; (c) provide recreational boating access; (d) 
enhance the public's understanding of water resources, aquatic-life 
forms, and sport fishing; and (e) develop responsible attitudes and 
ethics toward aquatic and related environments. The Catalog of Federal 
Domestic Assistance at https://www.cfda.gov describes these programs 
under 15.611, 15.605, and 15.626.
    The Pittman-Robertson Wildlife Restoration Act, as amended (50 
Stat. 917; 16 U.S.C. 669-669k), and the Dingell-Johnson Sport Fish 
Restoration Act, as amended (64 Stat. 430; 16 U.S.C. 777-777n, except 
777e-1 and g-1), established the programs affected by this final rule 
in 1937 and 1950 respectively. We refer to these acts in this document 
and in the final rule as ``the Acts.'' They established a hunting- and 
angling-based user-pay and user-benefit system in which the State fish 
and wildlife agencies of the 50 States, the Commonwealths, and the 
territories receive formula-based funding from a continuing 
appropriation from a dedicated fund in the Treasury. The District of 
Columbia also receives funding, but only under the Dingell-Johnson 
Sport Fish Restoration Act. The Pittman-Robertson Wildlife Restoration 
Act does not authorize funding for the District of Columbia. Industry 
partners pay excise taxes into a dedicated fund in the Treasury on 
equipment and gear manufactured for purchase by hunters, anglers, 
boaters, archers, and recreational shooters. The Service distributes 
these funds to the fish and wildlife agencies of the States that 
contribute matching funds, generally derived from hunting and fishing 
license sales. In fiscal year 2010, the States and other eligible 
jurisdictions received $384 million in new funding through the Wildlife 
Restoration and Enhanced Hunter Education and Safety programs and $363 
million in new funding through the Sport Fish Restoration program.
    We published a proposed rule in the June 10, 2010, Federal Register 
[75 FR 32877] to revise the regulations governing 50 CFR part 80. We 
reviewed and considered all comments that were delivered to the 
Service's Division of Policy and Directives Management during a 60-day 
period from June 10 to August 9, 2010, and all comments that were 
entered on http://www.regulations.gov or postmarked during that period. 
We received 10 comments from State agencies, 2 comments from nonprofit 
organizations, and 2 comments from one individual. Most commenters 
addressed several issues, so we reorganized the issues into 33 single-
issue comments. This final rule adopts the proposed rule that we 
published on June 10, 2010, with changes based on the comments 
received. We discuss these comments in the following section.

Response to Public Comments

    We arranged the public comments under the relevant sections of the 
rule. Each numbered comment is from only one agency, organization, or 
individual unless it states otherwise. The comments summarize the 
recommendations or opinions as the commenter presented them. We state 
in the response to each comment whether we made any changes as a result 
of the recommendation. We also state how we changed the rule, or we 
refer the reader to the location of the change in the final rule.
    Some public comments led us to reexamine sections beyond those that 
the public addressed specifically. Based on this reexamination, we made 
nonsubstantive changes throughout the document to improve clarity, 
consistency, organization, or comprehensiveness. We addressed any 
substantive changes that resulted from this reexamination in our 
responses to the comments.

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    We use the term ``current'' to refer to 50 CFR part 80 or any 
section or paragraph of 50 CFR part 80 that became effective after 
publication of a final rule in the Federal Register at 73 FR 43120, 
July 24, 2008. The term ``proposed'' refers to language that was in the 
proposed rule published in the Federal Register at 75 FR 32877, June 
10, 2010. The term ``new'' refers to the language of 50 CFR part 80 as 
published in this final rule.

Subpart A--General

Section 80.2 What terms do I need to know?
    Comment 1: Define personal property and law-enforcement activities.
    Response 1: We defined personal property to include intellectual 
property and gave examples at the new Sec.  80.2. We removed the 
definition of intellectual property and all examples from the proposed 
Sec.  80.20. To conform to these changes for personal property, we 
moved the examples of real property from the proposed Sec.  80.20(b)(1) 
to the definition at Sec.  80.2. We will consider proposing a 
definition of law enforcement during the next revision of 50 CFR part 
80, so we can receive public comments on a proposed definition.
    Comment 2: Three commenters had concerns about the proposed 
definition of wildlife, which includes only birds and mammals. One 
commenter said that the narrow definition would cause conflicts with 
States that define it more broadly. Another commenter requested that we 
broaden the definition to include alligators. The third commenter noted 
the proposed definition does not include snapping turtles or bullfrogs, 
which are part of at least one State's hunting or sportfishing program.
    Response 2: We did not make any changes in response to these 
comments. The proposed rule's definition of wildlife is specific to 
wild birds and mammals. This is a common element in all State 
definitions of wildlife, and program regulations since 1956 have 
limited the benefits of the Pittman-Robertson Wildlife Restoration Act 
(Act) to wild birds and mammals. The Act did not define wildlife in the 
original 1937 legislation, and none of its amendments defined wildlife 
for purposes of projects under the Act. Although Public Law 106-553 
(December 21, 2000) amended the Act and defined wildlife, the only 
effects of the amendment were to authorize fiscal year 2001 funds for 
the Wildlife Conservation and Restoration program and to clarify the 
effect of the Federal Advisory Committee Act. Public Law 106-553's 
definition of wildlife did not apply to projects under the Act 
according to section 902(f).

Subpart C--License Revenue

Section 80.20 What does revenue from hunting and fishing licenses 
include?
    Comment 3: The opening statement in Sec.  80.20(a) reads, ``Hunting 
and fishing license revenue includes: (1) Proceeds that the State fish 
and wildlife agency receives from the sale of State-issued general or 
special hunting or fishing licenses * * * '' This is a change from the 
current Sec.  80.4, which reads, ``Revenues from license fees paid by 
hunters and fishermen are any revenues the State receives from the sale 
of licenses * * *'' This change could exclude as license revenue any 
license fees collected by other State agencies on behalf of the State 
fish and wildlife agencies.
    Response 3: We changed the proposed Sec.  80.20(a) to read, ``All 
proceeds from the sale of State-issued general or special hunting and 
fishing licenses, permits, stamps, tags, access and use fees, and other 
State charges to hunt or fish for recreational purposes.''

Subpart D--Certification of License Holders

Section 80.31 How does an agency certify the number of paid license 
holders?
    Comment 4: Insert ``or his or her designee'' after ``the director 
of the [State] agency'' at Sec.  80.31(b) because another individual 
may be responsible for submitting annual license- certification data 
electronically to the Service on behalf of the agency director.
    Response 4: We changed Sec.  80.31(b) to incorporate the 
recommendation.
Section 80.33 How does an agency decide who to count as paid license 
holders in the annual certification?
    Comment 5: One commenter supported the language at Sec.  
80.33(a)(1) allowing States to count license holders regardless of 
whether the licensee engages in the activity. Two other commenters said 
that the State should not count license holders in the annual 
certification if the licensee does not hunt or fish.
    Response 5: We did not make any changes based on this comment. Some 
people buy a license because they plan to hunt or fish, but never do. 
Others buy a license to take part in other outdoor activities on a 
State Wildlife Management Area where it is required for entry. Some buy 
a license solely to support wildlife and sport fish programs. Others 
buy a lifetime license as a gift for a child who is too young to hunt 
or fish. The Acts require States to count the number of paid hunting- 
or fishing-license holders. They do not require States to count those 
who actually hunt or fish.
    Comment 6: Allow a State to verify a license holder in State 
records using a unique identifier instead of a name. This will 
accommodate a State that does not record the name of certain categories 
of license holders, such as minors, out-of-State hunters and anglers, 
and individuals who do not want to give their names for religious 
reasons.
    Response 6: We accepted the recommendation, but we need to ensure 
that the agency can associate a license holder with the unique 
identifier. We changed the proposed Sec.  80.33(a) to read: ``A State 
fish and wildlife agency must count only those people who have a 
license issued: (1) In the license holder's name, or (2) With a unique 
identifier that is traceable to the license holder, who must be 
verifiable in State records.''
    Comment 7: Section 80.33(a)(4) does not allow a State director to 
count all persons who have paid licenses to hunt or fish in the State-
specified certification period. This is inconsistent with the Acts and 
the proposed Sec.  80.31(a).
    Response 7: We did not make any changes based on this comment. We 
use data from the annual certification of licenses to divide excise tax 
revenue among the States. Section 80.33 provides an equitable way to 
count: (a) Individuals holding licenses for a fixed period 
corresponding to the license-certification year, and (b) other 
individuals holding licenses for a period that starts on the date of 
purchase and ends 365 days later (variable period). A State that sells 
variable-period licenses should not be able to count them in two annual 
certification periods if a State that sells only single-year fixed-
period licenses can count them in only one annual certification period.
    Comment 8: Combination license holders should be counted as both 
anglers and hunters at Sec.  80.33(a)(6) only if the State offers an 
option to buy a separate license to hunt or fish. If no such option 
exists, the State should conduct a survey or use other means to find 
out how many license holders intend to hunt and how many intend to 
fish. The same approach should apply to use permits and entrance fees 
for wildlife management areas, to find out how many enter to hunt or 
fish, and how many enter for other activities. States should count only 
those who hunt or fish as paid license holders.
    Response 8: The Acts require States to count the number of paid 
hunting and

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fishing license holders. They do not require States to count those who 
actually hunt or fish, so we will not require surveys as the commenter 
recommended.
    Comment 9: The proposed Sec.  80.33(b) states that, for a multiyear 
license to be counted in each certification period, a State fish and 
wildlife agency must receive $1 per year of net revenue for each year 
in which the license is valid. Clarify whether the agency can count the 
multiyear license as a paid license if the agency spends the entire 
multiyear license fee immediately after receiving it. Without this 
clarification, an alternative interpretation is that the agency must 
hold the fee over the lifetime of the license so that $1 of net revenue 
is available in each year that the agency will count it as a paid 
license.
    Response 9: We added a new Sec.  80.35 on requirements for 
multiyear licenses. Paragraph (b) of this new section addresses the 
commenter's concern: ``The agency must receive net revenue from a 
multiyear license that is in close approximation to the net revenue 
received for a single-year license providing similar privileges:
    (1) Each year during the license period, or
    (2) At the time of sale as if it were a single-payment annuity, 
which is an investment of the license fee that shows the agency would 
have received at least the minimum required net revenue for each year 
of the license period.''
Section 80.34 (new section 80.36) May an agency count license holders 
in the annual certification if the agency receives funds from the State 
to cover their license fees?
    Comment 10: One commenter said that senior citizens in his State 
must pay $11 for a license, of which the State fish and wildlife agency 
receives about $9. The commenter said this $9 in net revenue allows the 
State to count the license in only nine annual certification periods. 
He compared this to the proposed Sec. Sec.  80.33(b) and 80.34 which 
would allow a State to provide funds to its fish and wildlife agency to 
cover fees normally charged for a category of license, such as senior 
citizens or veterans. The agency would be able to count those license 
holders in the annual certification for each year that the State covers 
the fees. The commenter said this change would potentially shift funds 
from States that offer low-cost licenses to those where the State 
covers fees normally charged for a category of license. Two other 
commenters opposed the proposed Sec. Sec.  80.33(b) and 80.34, and two 
commenters supported these sections.
    Response 10: We did not make any changes based on this comment. If 
a State chooses to pay the hunting and fishing license fees for a 
category of its citizens, it should be able to count the license 
holders in the annual certification if the State and its fish and 
wildlife agency satisfy the conditions at the new Sec.  80.36.
    Comment 11: The proposed Sec.  80.34(b) requires that any funds 
that a State provides to its fish and wildlife agency to cover fees for 
a category of license holder must equal or exceed the fees that the 
license holder would have paid. Why is this different from the standard 
at the proposed Sec.  80.33(a)(4), which requires that the agency 
receive at least $1 per year of net revenue?
    Response 11: Licenses that provide similar privileges should not 
have a lower fee just because the State is paying for it. We retained 
this requirement with an additional clarification at the new Sec.  
80.36(d).

Subpart E--Eligible Activities

Section 80.50 What activities are eligible for funding under the 
Pittman-Robertson Wildlife Restoration Act?
    Comment 12: Add as an eligible activity, ``Obtain data to guide and 
direct the regulation of hunting.''
    Response 12: We added the recommended eligible activity at a new 
paragraph (a)(3).
    Comment 13: The use of ``or'' in the proposed Sec.  80.50(a)(4) 
allows funding for anything that simply provides public access. The 
public access should be associated with a wildlife- or habitat-
management or conservation purpose.
    Response 13: We changed the proposed Sec.  80.50(a)(4) to read, 
``Acquire real property suitable or capable of being made suitable for: 
(i) Wildlife habitat, or (ii) Public access for hunting and other 
wildlife-oriented recreation.'' We also moved the proposed Sec.  
80.50(a)(5)(ii) to the new Sec.  80.50(a)(6)(ii) and changed it to 
read, ``Provide public access for hunting or other wildlife-oriented 
recreation.''
    Comment 14: Add coordination of grants as an eligible activity for 
the Wildlife and Sport Fish Restoration programs. Add technical 
assistance as an eligible activity for the Wildlife Restoration 
program.
    Response 14: We added ``Coordinate grants in the Wildlife 
Restoration program and related programs and subprograms'' as an 
eligible activity for the Wildlife Restoration program at the new Sec.  
80.50(a)(8). We also added ``Coordinate grants in the Sport Fish 
Restoration program and related programs and subprograms'' as an 
eligible activity for the Sport Fish Restoration program at the new 
Sec.  80.51(a)(11). We did not add technical assistance because we may 
need to establish criteria to decide when it is appropriate, and we do 
not want to do this without the benefit of public comment following a 
proposed rule. However, the Regional Director may still approve 
technical assistance as an eligible activity on a case-by-case basis 
under the new section Sec.  80.52, which we discuss in Response 15.
    Comment 15: The ``closed list'' of eligible activities could 
exclude some creative projects that may be appropriate under the Act.
    Response 15: We added a new section Sec.  80.52 which reads: ``An 
activity may be eligible for funding even if this part does not 
explicitly designate it as an eligible activity if: (a) The State fish 
and wildlife agency justifies in the project statement how the activity 
will help carry out the purposes of the Pittman-Robertson Wildlife 
Restoration Act or the Dingell-Johnson Sport Fish Restoration Act, and 
(b) The Regional Director concurs with the justification.''
    Comment 16: One commenter was pleased that the proposed rule 
included hunter development and recruitment as eligible for funding 
under the Enhanced Hunter Education and Safety program. Another 
commenter said that recruitment has no foundation in the Act. The 
commenter also said that the Service could consider marketing, 
promotion, and advertising that may be part of recruitment as public 
relations, which is an ineligible activity.
    Response 16: We disagreed with the commenter's view that 
recruitment may be an ineligible activity. The Pittman-Robertson 
Wildlife Restoration Act at 16 U.S.C. 669h-1 specifically allows the 
use of funds for hunter-development programs, and recruitment may be 
the first phase of hunter development. We made no changes based on this 
comment.
    Comment 17: The linkage that Sec.  80.50(c)(1) makes between hunter 
development and target shooting is weak at best.
    Response 17: Target shooting is an activity that develops certain 
hunting skills and supplements hunter education and firearm safety. We 
made no changes based on this comment.
    Comment 18: The proposed rule should have said whether competitive 
shooting events are eligible activities and more specifically whether a 
grant could pay for prizes, scholarships, and awards associated with 
competitive shooting events.

[[Page 46153]]

    Response 18: If the State fish and wildlife agency, or more 
typically, the subgrantee, holds the competitive shooting event for the 
primary purpose of producing income, the event would not be eligible 
for funding under the Pittman-Robertson Wildlife Restoration Act. We 
will consider developing Service policy on competitive events in the 
grant programs and subprograms authorized by the Acts. We made no 
changes based on this comment.
Section 80.51 What activities are eligible for funding under the 
Dingell-Johnson Sport Fish Restoration Act?
    Comment 19: Add as an eligible activity for the Sport Fish 
Restoration program, ``Stock fish for recreational purposes.''
    Response 19: We incorporated the recommendation at the new Sec.  
80.51(a)(5).
    Comment 20: Change the second sentence at Sec.  80.51(b)(1) so that 
it reads, ``A broad range of access facilities and associated amenities 
can qualify for funding, but they must provide benefits to recreational 
boaters.'' This change will align the regulation with the language of 
the Act. The Service's policy at 517 FW 7.12(B) already ensures that 
the facilities accommodate stakeholders who buy motorboat fuels or 
angling gear.
    Response 20: We changed the sentence as recommended.
Section 80.52 (80.53 in final rule) What activities are ineligible for 
funding?
    Comment 21: Clarify whether wildlife damage and predator control 
are eligible for funding from (a) a grant in the Wildlife Restoration 
program, or (b) license revenue.
    Response 21: We will consider this issue during the next revision 
of 50 CFR 80, so that the public will have the opportunity to offer 
comments. We made no changes based on this comment.

Subpart F--Allocation of Funds by an Agency

Section 80.60 What is the relationship between the Basic Hunter 
Education and Safety subprogram and the Enhanced Hunter Education and 
Safety program?
    Comment 22: Explain at Sec.  80.60(c) that the Service reapportions 
unobligated Enhanced Hunter Education funds to eligible States as 
Wildlife Restoration funds and not Hunter Education funds.
    Response 22: We changed Sec.  80.60(c) to incorporate this 
recommendation.
Section 80.66 What requirements apply to allocation of funds between 
marine and freshwater fisheries projects?
    Comment 23: The proposed Sec.  80.66(a) requires the use of a 
proportion based on the ratio of a State's resident marine anglers to 
the State's total anglers. This ratio must equal the ratio of: (a) The 
Sport Fish Restoration funds that the State allocates for marine 
projects, to (b) the total Sport Fish Restoration funds. However, some 
marine anglers also fish in freshwater, so a State has to allocate this 
overlap when developing a ratio for marine and a ratio for freshwater 
anglers. The Service has misinterpreted 16 U.S.C. 777(b)(1) which 
reads, `` * * * [E]ach coastal State * * * shall equitably allocate 
amounts apportioned to such State * * * between marine fish projects 
and freshwater fish projects in the same proportion as the estimated 
number of resident marine anglers and the estimated number of resident 
freshwater anglers, respectively, bear to the estimated number of all 
resident anglers in that State.'' This requires only a comparison of 
the number of marine anglers to the number of freshwater anglers in the 
same order as a comparison of the dollars allocated to marine projects 
and the dollars allocated to freshwater projects. The relationship of 
the numbers of the two types of anglers is a ratio, just as the 
relationship of the two dollar amounts is a ratio. The two ratios are 
in the ``same proportion'' as required by Sec.  777(b)(1). The proposed 
rule incorrectly requires a proportion based on: (a) A comparison of 
the funds allocated to marine fisheries projects with the total funds 
allocated to marine and freshwater fisheries, and (b) a comparison of 
marine anglers to the total number of marine and freshwater anglers.
    Response 23: The commenter's recommendation would make the 
allocation of funds simpler, but the proposed Sec.  80.66(a) is the 
most reasonable interpretation of what the drafters of the legislation 
intended. In any case, it would not be appropriate to impose a 
different allocation method based on an alternative interpretation 
without the benefit of public review. We made no changes based on this 
comment, but we will review this issue before the next revision of 50 
CFR 80.

Subpart G--Application for a Grant

Section 80.83 What is the Federal share of allowable cost?
    Comment 24: Section 80.83(a) gives the Regional Director the 
discretion to reimburse allowable costs on a sliding scale between 10 
and 75 percent, but does not give guidance on how the Regional Director 
should make that decision.
    Response 24: The commenter's general concern was also applicable to 
the other paragraphs of Sec.  80.83. We changed the proposed Sec.  
80.83 to provide more detail on how the Regional Director decides on 
the Federal share.

Subpart I--Program Income

Section 80.120 What is program income?
    Comment 25: Explain at the proposed Sec.  80.120(c)(1) why hunting 
and fishing license revenue collected as fees for special-area access 
or recreation cannot be program income.
    Response 25: We deleted the proposed Sec.  80.120(c)(1) from the 
list of examples of revenue that cannot be program income. This 
deletion is the result of a July 2010 determination that hunter-access 
fees on lands leased with grant funds for public hunting may qualify as 
program income under certain conditions.
    Comment 26: Explain the basis of the distinction between leases 
with terms greater than 10 years and leases with terms less than 10 
years.
    Response 26: Leases are legally complex. Their classification as 
personal or real property varies significantly among the States and 
even within a State depending on the type of property. The 
classification of a lease as real or personal property is important 
because it determines whether rent earned by a grantee from the lease 
of real property acquired under a grant is classified as program income 
or as proceeds from the disposition of real property. We proposed the 
10-year threshold to simplify this complexity by adopting a common 
standard for classifying leases as real or personal property for 
purposes of the grant programs under the Acts. We chose 10 years 
because it is a commonly accepted dividing line between long-term and 
short-term leases, which often affects the lessees' rights and 
responsibilities. We will present this subject in the context of a 
future proposed rule that focuses on the acquisition and disposition of 
all types of real property under a grant. Until we can develop a 
proposed rule with that focus, we will rely on case-by-case legal 
interpretations when faced with lease-related issues. We changed the 
proposed Sec.  80.120(c)(6), which is the new Sec.  80.120(c)(5), to 
read, ``Proceeds from the sale of real property.''

[[Page 46154]]

Section 80.123 How may an agency use program income?
    Comment 27: One commenter stated that we should not require State 
fish and wildlife agencies to obtain the Regional Director's approval 
of the matching method for using program income if we do not require 
the Regional Director's approval for other activities under a grant. 
This commenter and another stated that all grants qualified for use of 
the matching method under the criteria at Sec.  80.123(c), and both 
commenters said that we should consider approving the use of the 
matching method without conditions or give specific guidance on when 
its use is appropriate. A third commenter also requested guidance on 
when the matching method is appropriate.
    Response 27: The statement at Sec.  80.123(c) that the Regional 
Director may approve the use of the matching method is consistent with 
other prior-approval requirements of this regulation. The Director has 
delegated the authority to conduct grant programs to the Regional 
Director with only a few exceptions. The definition of ``Regional 
Director'' at Sec.  80.2 includes his or her designated representative, 
and Regional Directors have generally delegated most decisions on grant 
programs to the chiefs of their Regional Wildlife and Sport Fish 
Restoration Program Divisions. We will consider proposing criteria for 
approval of the matching method of using program income during the next 
revision of 50 CFR 80 so the public will have the opportunity to offer 
comments. We made no changes based on these comments.

Subpart J--Real Property

Section 80.130 Does an agency have to hold title to real property 
acquired under a grant?
    Comment 28: Do not restrict a State agency's ability in Sec.  
80.130 to carry out a grant-funded project on lands to which it does 
not have title. States may want to use grant funds to manage wildlife 
on Federal lands under the terms of a cooperative agreement.
    Response 28: Both Sec. Sec.  80.130 and 80.132 relate to the 
commenter's concern. We based these sections on 16 U.S.C. 777g(a), 43 
CFR 12.71(a) and (b), and the current regulation at Sec.  80.20, which 
has been part of 50 CFR part 80 with only a minor change since 1982. 
The final rule does not affect an agency's ability to manage Federal 
lands cooperatively if this management does not include the completion 
of a capital improvement.
Section 80.131 Does an agency have to hold an easement acquired under a 
grant?
    Comment 29: Replace ``subgrantee'' with ``third party'' because 
``subgrant'' implies that grant funding passes to a subgrantee for use 
at the subgrantee's discretion.
    Response 29: A subgrantee is an entity that receives an award of 
money or property. A subgrantee is accountable to the grantee for the 
use of the money or property (see definitions of subgrant and 
subgrantee at 43 CFR 12.43). The proposed Sec.  80.131(b) allows the 
grantee to subgrant only a concurrent right to hold the easement or a 
right of enforcement. The grantee will be able to set the terms of the 
subgrant agreement and ensure that the subgrantee's right will not 
supersede and will be concurrent with the agency's right of 
enforcement. Since a third party is not necessarily a subgrantee, the 
grantee may not be able to set the terms of any agreement on the right 
of enforcement or a concurrent right to hold the easement. We made no 
changes based on this comment.
    Comment 30: Define ``concurrent right to hold.''
    Response 30: We defined the term at the new Sec.  80.131(b)(2).
Section 80.132 Does an agency have to control the land or water where 
it completes capital improvements?
    See Comments 31 and 32 and our responses.
Section 80.134 How must an agency use real property?
    Comment 31: Instead of requiring a grantee to use real property for 
the uses in the grant, the regulation should state that the property 
must continue to serve the purpose of the grant and must be used for 
the administration of the fish and wildlife programs.
    Response 31: The new Sec.  80.134(a) states, ``If a grant funds 
acquisition of an interest in a parcel of land or water, the State fish 
and wildlife agency must use it for the purpose authorized in the 
grant.'' The requirement to use property for the administration of fish 
and wildlife programs applies only if: (a) The administration of fish 
and wildlife programs is a purpose of the grant-funded project that 
acquired, completed, operated, or maintained the real property; or (b) 
license revenue funded all or part of the project [see the proposed 50 
CFR 80.10(c)(2)]. We made no changes based on this comment.
    Comment 32: Clarify that grant projects on property other than that 
acquired with grant funds fall within the requirements of Sec.  80.134.
    Response 32: The comment applies to Sec.  80.132 as well as Sec.  
80.134. We changed Sec. Sec.  80.132 and 80.134 to incorporate the 
recommendation and to clarify in Sec.  80.134 the differences in use 
requirements for specific types of grant-funded projects.
Section 80.137 What if real property is no longer useful or needed for 
its original purpose?
    Comment 33: The proposed Sec.  80.137 says that if a State fish and 
wildlife agency's director and the Service's Regional Director jointly 
decide that grant-funded real property is no longer useful or needed 
for its original purpose, the State agency's director may request 
disposition instructions. Provide guidance on how the Service and State 
agency will cooperatively formulate these instructions.
    Response 33: We changed the proposed Sec.  80.137(b) so that it 
reads: ``Request disposition instructions for the real property under 
the process described at 43 CFR 12.71, `Administrative and Audit 
Requirements and Cost Principles for Assistance Programs'.''

Required Determinations

Regulatory Planning and Review (E.O. 12866)

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant and has not reviewed this rule under E.O. 
12866. OMB bases its determination on the following four criteria:
    a. Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    b. Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    c. Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    d. Whether the rule raises novel legal or policy issues.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    The Regulatory Flexibility Act requires an agency to consider the 
impact of final rules on small entities, i.e., small businesses, small 
organizations, and small government jurisdictions. If there is a 
significant economic impact on a substantial number of small entities, 
the agency must perform a Regulatory Flexibility Analysis. This is not 
required if the

[[Page 46155]]

head of an agency certifies the rule would not have a significant 
economic impact on a substantial number of small entities. The Small 
Business Regulatory Enforcement Fairness Act (SBREFA) amended the 
Regulatory Flexibility Act to require Federal agencies to state the 
factual basis for certifying that a rule would not have a significant 
economic impact on a substantial number of small entities.
    We have examined this final rule's potential effects on small 
entities as required by the Regulatory Flexibility Act. We have 
determined that the changes in the final rule will not have a 
significant impact and do not require a Regulatory Flexibility Analysis 
because the changes:
    a. Give information to State fish and wildlife agencies that allows 
them to apply for and administer grants more easily, more efficiently, 
and with greater flexibility. Only State fish and wildlife agencies may 
receive grants in the three programs affected by this regulation, but 
small entities sometimes voluntarily become subgrantees of agencies. 
Any impact on these subgrantees would be beneficial.
    b. Address changes in law and regulation. This rule helps grant 
applicants and recipients by making the regulations consistent with 
current standards. Any impact on small entities that voluntarily become 
subgrantees of agencies would be beneficial.
    c. Change three provisions on license certification adopted in a 
final rule published on July 24, 2008, based on subsequent experience. 
These changes would impact only agencies and not small entities.
    d. Clarify additional issues in the Pittman-Robertson Wildlife 
Restoration Act and Dingell-Johnson Sport Fish Restoration Act. This 
clarification will help agencies comply with statutory requirements and 
increase awareness of alternatives available under the law. Any impact 
on small entities that voluntarily become subgrantees of agencies would 
be beneficial.
    e. Clarify that (1) cooperative farming or grazing arrangements and 
(2) sales receipts retained by concessioners or contractors are not 
program income. This clarification allows States to expand projects 
with small businesses and farmers without making these cooperative 
arrangements or sales receipts subject to program income restrictions. 
This clarification would be potentially beneficial to the small 
entities that voluntarily become cooperative farmers, cooperative 
ranchers, and concessioners.
    f. Add information that allows States to enter into agreements with 
nonprofit organizations to share rights or responsibilities for 
easements acquired under grants for the mutual benefit of both parties. 
This addition would benefit the small entities that enter into these 
agreements voluntarily.
    g. Reword and reorganize the regulation to make it easier to 
understand. Any impact on the small entities that voluntarily become 
subgrantees of agencies would be beneficial.
    The Service has determined that the changes primarily impact State 
governments. The small entities affected by the changes are primarily 
concessioners, cooperative farmers, cooperative ranchers, and 
subgrantees who voluntarily enter into mutually beneficial 
relationships with an agency. The impact on small entities would be 
very limited and beneficial in all cases.
    Consequently, we certify that because this final rule would not 
have a significant economic effect on a substantial number of small 
entities, a Regulatory Flexibility Analysis is not required.
    In addition, this final rule is not a major rule under SBREFA (5 
U.S.C. 804(2)) and would not have a significant impact on a substantial 
number of small entities because it does not:
    a. Have an annual effect on the economy of $100 million or more.
    b. Cause a major increase in costs or prices for consumers; 
individual industries; Federal, State, or local government agencies; or 
geographic regions.
    c. Have significant adverse effects on competition, employment, 
investment, productivity, innovation, or the ability of U.S.-based 
enterprises to compete with foreign-based enterprises.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. Ch. 25; Pub. L. 
104-4) establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. The Act requires each Federal 
agency, to the extent permitted by law, to prepare a written assessment 
of the effects of a final rule with Federal mandates that may result in 
the expenditure by State, local, and tribal governments, in aggregate, 
or by the private sector, of $100 million or more (adjusted annually 
for inflation) in any one year. We have determined the following under 
the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.):
    a. As discussed in the determination for the Regulatory Flexibility 
Act, this final rule would not have a significant economic effect on a 
substantial number of small entities.
    b. The regulation does not require a small government agency plan 
or any other requirement for expenditure of local funds.
    c. The programs governed by the current regulations and enhanced by 
the changes potentially assist small governments financially when they 
occasionally and voluntarily participate as subgrantees of an agency.
    d. The final rule clarifies and enhances the current regulations 
allowing State, local, and tribal governments, and the private sector 
to receive the benefits of grant funding in a more flexible, efficient, 
and effective manner. They may receive these benefits as a subgrantee 
of a State fish and wildlife agency, a cooperating farmer or rancher, a 
concessioner, a concurrent holder of a grant-acquired easement, or a 
holder of enforcement rights under an easement.
    e. Any costs incurred by a State, local, and tribal government, or 
the private sector are voluntary. There are no mandated costs 
associated with the final rule.
    f. The benefits of grant funding outweigh the costs. The Federal 
Government provides up to 75 percent of the cost of each grant to the 
50 States in the three programs affected by the final rule. The Federal 
Government may also provide up to 100 percent of the cost of each grant 
to the Commonwealths of Puerto Rico and the Northern Mariana Islands, 
the District of Columbia, and the territories of Guam, the U.S. Virgin 
Islands, and American Samoa. All 50 States and other eligible 
jurisdictions voluntarily apply for grants in these programs each year. 
This rate of participation is clear evidence that the benefits of grant 
funding outweigh the costs.
    g. This final rule would not produce a Federal mandate of $100 
million or greater in any year, i.e., it is not a ``significant 
regulatory action'' under the Unfunded Mandates Reform Act.

Takings

    This final rule does not have significant takings implications 
under E.O. 12630 because it does not have a provision for taking 
private property. Therefore, a takings implication assessment is not 
required.

Federalism

    This final rule does not have sufficient Federalism effects to 
warrant preparation of a Federalism assessment under E.O. 13132. It 
will not interfere with the States' ability to manage themselves or 
their funds. We work

[[Page 46156]]

closely with the States in administration of these programs, and they 
helped us identify those sections of the current regulations in need of 
change and new issues in need of clarification through regulation. In 
drafting the final rule, we received comments from committees of the 
Association of Fish and Wildlife Agencies and from the Joint Federal/
State Task Force on Federal Assistance Policy. The Director of the U.S. 
Fish and Wildlife Service and the President of the Association of Fish 
and Wildlife Agencies jointly chartered the Joint Federal/State Task 
Force on Federal Assistance Policy in 2002 to identify issues of 
national concern in the three grant programs affected by the final 
rule.

Civil Justice Reform

    The Office of the Solicitor has determined under E.O. 12988 that 
the rule would not unduly burden the judicial system and meets the 
requirements of sections 3(a) and 3(b)(2) of the Order. The final rule 
will benefit grantees because it:
    a. Updates the regulations to reflect changes in policy and 
practice during the past 25 years;
    b. Makes the regulations easier to use and understand by improving 
the organization and using plain language;
    c. Modifies four provisions in the final rule to amend 50 CFR part 
80 published in the Federal Register at 73 FR 43120 on July 24, 2008, 
based on subsequent experience; and
    d. Addresses four new issues that State fish and wildlife agencies 
raised in response to the proposed rule to amend 50 CFR part 80 
published in the Federal Register at 73 FR 24523, May 5, 2008.

Paperwork Reduction Act

    We examined the final rule under the Paperwork Reduction Act (44 
U.S.C. 3501 et seq.). We may not collect or sponsor and you are not 
required to respond to a collection of information unless it displays a 
current OMB control number. The final rule at 50 CFR 80.160 describes 
eight information collections. All of these collections request 
information from State fish and wildlife agencies, and all have current 
OMB control numbers.
    OMB authorized and approved Governmentwide standard forms for four 
of the eight information collections. These four information 
collections are for the purposes of: (a) Application for a grant; (b) 
assurances related to authority, capability, and legal compliance for 
nonconstruction programs, (c) assurances related to authority, 
capability, and legal compliance for construction programs; and (d) 
reporting on the use of Federal funds, match, and program income.
    OMB approved three other information collections in the final rule 
under control number 1018-0109, but has not approved Governmentwide 
standard forms for these collections. The purposes of these information 
collections are to provide the Service with: (a) A project statement in 
support of a grant application, (b) a report on progress in completing 
a grant-funded project, and (c) a request to approve an update or 
another change in information provided in a previously approved 
application. OMB authorized these information collections in its 
Circular A-102.
    The Acts and the current 50 CFR 80.10 authorize the eighth 
information collection. This collection allows the Service to learn the 
number of people who have a paid license to hunt and the number of 
people who have a paid license to fish in each State during a State-
specified certification year. The Service uses this information in 
statutory formulas to apportion funds in the Wildlife Restoration and 
Sport Fish Restoration programs among the States. OMB approved this 
information collection on forms FWS 3-154a and 3-154b under control 
number 1018-0007. The final rule does not change the information 
required on forms FWS 3-154a and 3-154b. It merely establishes a common 
approach for States to assign license holders to a certification year.

National Environmental Policy Act

    We have analyzed this rule under the National Environmental Policy 
Act, 42 U.S.C. 432-437(f) and part 516 of the Departmental Manual. This 
rule does not constitute a major Federal action significantly affecting 
the quality of the human environment. An environmental impact 
statement/assessment is not required due to the categorical exclusion 
for administrative changes provided at 516 DM 8.5A(3).

Government-to-Government Relationship With Tribes

    We have evaluated potential effects on federally recognized Indian 
tribes under the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), E.O. 13175, and 512 DM 2. We have 
determined that there are no potential effects. This final rule will 
not interfere with the tribes' ability to manage themselves or their 
funds.

Energy Supply, Distribution, or Use (E.O. 13211)

    E.O. 13211 addresses regulations that significantly affect energy 
supply, distribution, and use and requires agencies to prepare 
Statements of Energy Effects when undertaking certain actions. This 
rule is not a significant regulatory action under E.O. 12866 and will 
not affect energy supplies, distribution, or use. Therefore, this 
action is not a significant energy action and no Statement of Energy 
Effects is required.

List of Subjects in 50 CFR Part 80

    Education, Fish, Fishing, Grants administration, Grant programs, 
Hunting, Natural resources, Real property acquisition, Recreation and 
recreation areas, Signs and symbols, Wildlife.

Final Regulation Promulgation

    For the reasons discussed in the preamble, we amend title 50 of the 
Code of Federal Regulations, chapter I, subchapter F, by revising part 
80 to read as set forth below:

Title 50--Wildlife and Fisheries

PART 80--ADMINISTRATIVE REQUIREMENTS, PITTMAN-ROBERTSON WILDLIFE 
RESTORATION AND DINGELL-JOHNSON SPORT FISH RESTORATION ACTS

Subpart A--General
Sec.
80.1 What does this part do?
80.2 What terms do I need to know?
Subpart B--State Fish and Wildlife Agency Eligibility
80.10 Who is eligible to receive the benefits of the Acts?
80.11 How does a State become ineligible to receive the benefits of 
the Acts?
80.12 Does an agency have to confirm that it wants to receive an 
annual apportionment of funds?
Subpart C--License Revenue
80.20 What does revenue from hunting and fishing licenses include?
80.21 What if a State diverts license revenue from the control of 
its fish and wildlife agency?
80.22 What must a State do to resolve a declaration of diversion?
80.23 Does a declaration of diversion affect a previous Federal 
obligation of funds?
Subpart D--Certification of License Holders
80.30 Why must an agency certify the number of paid license holders?
80.31 How does an agency certify the number of paid license holders?
80.32 What is the certification period?

[[Page 46157]]

80.33 How does an agency decide who to count as paid license holders 
in the annual certification?
80.34 How does an agency calculate net revenue from a license?
80.35 What additional requirements apply to multiyear licenses?
80.36 May an agency count license holders in the annual 
certification if the agency receives funds from the State to cover 
their license fees?
80.37 What must an agency do if it becomes aware of errors in its 
certified license data?
80.38 May the Service recalculate an apportionment if an agency 
submits revised data?
80.39 May the Director correct a Service error in apportioning 
funds?
Subpart E--Eligible Activities
80.50 What activities are eligible for funding under the Pittman-
Robertson Wildlife Restoration Act?
80.51 What activities are eligible for funding under the Dingell-
Johnson Sport Fish Restoration Act?
80.52 May an activity be eligible for funding if it is not 
explicitly eligible in this part?
80.53 Are costs of State central services eligible for funding?
80.54 What activities are ineligible for funding?
80.55 May an agency receive a grant to carry out part of a larger 
project?
80.56 How does a proposed project qualify as substantial in 
character and design?
Subpart F--Allocation of Funds by an Agency
80.60 What is the relationship between the Basic Hunter Education 
and Safety subprogram and the Enhanced Hunter Education and Safety 
program?
80.61 What requirements apply to funds for the Recreational Boating 
Access subprogram?
80.62 What limitations apply to spending on the Aquatic Resource 
Education and the Outreach and Communications subprograms?
80.63 Does an agency have to allocate costs in multipurpose projects 
and facilities?
80.64 How does an agency allocate costs in multipurpose projects and 
facilities?
80.65 Does an agency have to allocate funds between marine and 
freshwater fisheries projects?
80.66 What requirements apply to allocation of funds between marine 
and freshwater fisheries projects?
80.67 May an agency finance an activity from more than one annual 
apportionment?
80.68 What requirements apply to financing an activity from more 
than one annual apportionment?
Subpart G--Application for a Grant
80.80 How does an agency apply for a grant?
80.81 What must an agency submit when applying for a comprehensive-
management-system grant?
80.82 What must an agency submit when applying for a project-by-
project grant?
80.83 What is the Federal share of allowable costs?
80.84 How does the Service establish the non-Federal share of 
allowable costs?
80.85 What requirements apply to match?
Subpart H--General Grant Administration
80.90 What are the grantee's responsibilities?
80.91 What is a Federal obligation of funds and how does it occur?
80.92 How long are funds available for a Federal obligation?
80.93 When may an agency incur costs under a grant?
80.94 May an agency incur costs before the beginning of the grant 
period?
80.95 How does an agency receive Federal grant funds?
80.96 May an agency use Federal funds without using match?
80.97 May an agency barter goods or services to carry out a grant-
funded project?
80.98 How must an agency report barter transactions?
80.99 Are symbols available to identify projects?
80.100 Does an agency have to display one of the symbols in this 
part on a completed project?
Subpart I--Program Income
80.120 What is program income?
80.121 May an agency earn program income?
80.122 May an agency deduct the costs of generating program income 
from gross income?
80.123 How may an agency use program income?
80.124 How may an agency use unexpended program income?
80.125 How must an agency treat income that it earns after the grant 
period?
80.126 How must an agency treat income earned by a subgrantee after 
the grant period?
Subpart J--Real Property
80.130 Does an agency have to hold title to real property acquired 
under a grant?
80.131 Does an agency have to hold an easement acquired under a 
grant?
80.132 Does an agency have to control the land or water where it 
completes capital improvements?
80.133 Does an agency have to maintain acquired or completed capital 
improvements?
80.134 How must an agency use real property?
80.135 What if an agency allows a use of real property that 
interferes with its authorized purpose?
80.136 Is it a diversion if an agency does not use grant-acquired 
real property for its authorized purpose?
80.137 What if real property is no longer useful or needed for its 
original purpose?
Subpart K--Revisions and Appeals
80.150 How does an agency ask for revision of a grant?
80.151 May an agency appeal a decision?
Subpart L--Information Collection
80.160 What are the information collection requirements of this 
part?

    Authority: 16 U.S.C. 669-669k; 16 U.S.C. 777-777n, except 777e-1 
and g-1.

Subpart A--General


Sec.  80.1  What does this part do?

    This part of the Code of Federal Regulations tells States how they 
may:
    (a) Use revenues derived from State hunting and fishing licenses in 
compliance with the Acts.
    (b) Receive annual apportionments from the Federal Aid to Wildlife 
Restoration Fund (16 U.S.C. 669(b)), if authorized, and the Sport Fish 
Restoration and Boating Trust Fund (26 U.S.C 9504).
    (c) Receive financial assistance from the Wildlife Restoration 
program, the Basic Hunter Education and Safety subprogram, and the 
Enhanced Hunter Education and Safety grant program, if authorized.
    (d) Receive financial assistance from the Sport Fish Restoration 
program, the Recreational Boating Access subprogram, the Aquatic 
Resources Education subprogram, and the Outreach and Communications 
subprogram.
    (e) Comply with the requirements of the Acts.


Sec.  80.2  What terms do I need to know?

    The terms in this section pertain only to the regulations in this 
part.
    Acts means the Pittman-Robertson Wildlife Restoration Act of 
September 2, 1937, as amended (16 U.S.C. 669-669k), and the Dingell-
Johnson Sport Fish Restoration Act of August 9, 1950, as amended (16 
U.S.C. 777-777n, except 777e-1 and g-1).
    Agency means a State fish and wildlife agency.
    Angler means a person who fishes for sport fish for recreational 
purposes as permitted by State law.
    Capital improvement. (1) Capital improvement means:
    (i) A structure that costs at least $10,000 to build; or
    (ii) The alteration, renovation, or repair of a structure if it 
increases the structure's useful life or its market value by at least 
$10,000.
    (2) An agency may use its own definition of capital improvement if 
its definition includes all capital improvements as defined here.
    Comprehensive management system is a State fish and wildlife 
agency's method of operations that links programs, financial systems, 
human resources, goals, products, and services. It assesses the 
current, projected, and

[[Page 46158]]

desired status of fish and wildlife; it develops a strategic plan and 
carries it out through an operational planning process; and it 
evaluates results. The planning period is at least 5 years using a 
minimum 15-year projection of the desires and needs of the State's 
citizens. A comprehensive-management-system grant funds all or part of 
a State's comprehensive management system.
    Construction means the act of building or significantly renovating, 
altering, or repairing a structure. Acquiring, clearing, and reshaping 
land and demolishing structures are types or phases of construction. 
Examples of structures are buildings, roads, parking lots, utility 
lines, fences, piers, wells, pump stations, ditches, dams, dikes, 
water-control structures, fish-hatchery raceways, and shooting ranges.
    Director means:
    (1) The person whom the Secretary:
    (i) Appointed as the chief executive official of the U.S. Fish and 
Wildlife Service, and
    (ii) Delegated authority to administer the Acts nationally; or
    (2) A deputy or another person authorized temporarily to administer 
the Acts nationally.
    Diversion means any use of revenue from hunting and fishing 
licenses for a purpose other than administration of the State fish and 
wildlife agency.
    Fee interest means the right to possession, use, and enjoyment of a 
parcel of land or water for an indefinite period. A fee interest, as 
used in this part, may be the:
    (1) Fee simple, which includes all possible interests or rights 
that a person can hold in a parcel of land or water; or
    (2) Fee with exceptions to title, which excludes one or more real 
property interests that would otherwise be part of the fee simple.
    Grant means an award of money, the principal purpose of which is to 
transfer funds or property from a Federal agency to a grantee to 
support or stimulate an authorized public purpose under the Acts. This 
part uses the term grant for both a grant and a cooperative agreement 
for convenience of reference. This use does not affect the legal 
distinction between the two instruments. The meaning of grant in the 
terms grant funds, grant-funded, under a grant, and under the grant 
includes the matching cash and any matching in-kind contributions in 
addition to the Federal award of money.
    Grantee means the State fish and wildlife agency that applies for 
the grant and carries out grant-funded activities in programs 
authorized by the Acts. The State fish and wildlife agency acts on 
behalf of the State government, which is the legal entity and is 
accountable for the use of Federal funds, matching funds, and matching 
in-kind contributions.
    Lease means an agreement in which the owner of a fee interest 
transfers to a lessee the right of exclusive possession and use of an 
area of land or water for a fixed period, which may be renewable. The 
lessor cannot readily revoke the lease at his or her discretion. The 
lessee pays rent periodically or as a single payment. The lessor must 
be able to regain possession of the lessee's interest (leasehold 
interest) at the end of the lease term. An agreement that does not 
correspond to this definition is not a lease even if it is labeled as 
one.
    Match means the value of any non-Federal in-kind contributions and 
the portion of the costs of a grant-funded project or projects not 
borne by the Federal Government.
    Personal property means anything tangible or intangible that is not 
real property.
    (1) Tangible personal property includes:
    (i) Objects, such as equipment and supplies, that are moveable 
without substantive damage to the land or any structure to which they 
may be attached;
    (ii) Soil, rock, gravel, minerals, gas, oil, or water after 
excavation or extraction from the surface or subsurface;
    (iii) Commodities derived from trees or other vegetation after 
harvest or separation from the land; and
    (iv) Annual crops before or after harvest.
    (2) Intangible personal property includes:
    (i) Intellectual property, such as patents or copyrights;
    (ii) Securities, such as bonds and interest-bearing accounts; and
    (iii) Licenses, which are personal privileges to use an area of 
land or water with at least one of the following attributes:
    (A) Are revocable at the landowner's discretion;
    (B) Terminate when the landowner dies or the area of land or water 
passes to another owner; or
    (C) Do not transfer a right of exclusive use and possession of an 
area of land or water.
    Project means one or more related undertakings in a project-by-
project grant that are necessary to fulfill a need or needs, as defined 
by a State fish and wildlife agency, consistent with the purposes of 
the appropriate Act. For convenience of reference in this part, the 
meaning of project includes an agency's fish and wildlife program under 
a comprehensive management system grant.
    Project-by-project grant means an award of money based on a 
detailed statement of a project or projects and other supporting 
documentation.
    Real property means one, several, or all interests, benefits, and 
rights inherent in the ownership of a parcel of land or water. Examples 
of real property include fee and leasehold interests, conservation 
easements, and mineral rights.
    (1) A parcel includes (unless limited by its legal description) the 
air space above the parcel, the ground below it, and anything 
physically and firmly attached to it by a natural process or human 
action. Examples include standing timber, other vegetation (except 
annual crops), buildings, roads, fences, and other structures.
    (2) A parcel may also have rights attached to it by a legally 
prescribed procedure. Examples include water rights or an access 
easement that allows the parcel's owner to travel across an adjacent 
parcel.
    (3) The legal classification of an interest, benefit, or right 
depends on its attributes rather than the name assigned to it. For 
example, a grazing ``lease'' is often a type of personal property known 
as a license, which is described in the definition of personal property 
in this section.
    Regional Director means the person appointed by the Director to be 
the chief executive official of one of the Service's geographic 
Regions, or a deputy or another person temporarily authorized to 
exercise the authority of the chief executive official of one of the 
Service's geographic Regions. This person's responsibility does not 
extend to any administrative units that the Service's Washington Office 
supervises directly in that geographic Region.
    Secretary means the person appointed by the President to direct the 
operation of the Department of the Interior, or a deputy or another 
person who is temporarily authorized to direct the operation of the 
Department.
    Service means the U.S. Fish and Wildlife Service.
    Sport fish means aquatic, gill-breathing, vertebrate animals with 
paired fins, having material value for recreation in the marine and 
fresh waters of the United States.
    State means any State of the United States, the Commonwealths of 
Puerto Rico and the Northern Mariana Islands, and the territories of 
Guam, the U.S. Virgin Islands, and American Samoa. State also includes 
the District of Columbia for purposes of the Dingell-Johnson Sport Fish 
Restoration Act, the

[[Page 46159]]

Sport Fish Restoration program, and its subprograms. State does not 
include the District of Columbia for purposes of the Pittman-Robertson 
Wildlife Restoration Act and the programs and subprogram under the Act 
because the Pittman-Robertson Wildlife Restoration Act does not 
authorize funding for the District. References to ``the 50 States'' 
apply only to the 50 States of the United States and do not include the 
Commonwealths of Puerto Rico and the Northern Mariana Islands, the 
District of Columbia, or the territories of Guam, the U.S. Virgin 
Islands, and American Samoa.
    State fish and wildlife agency means the administrative unit 
designated by State law or regulation to carry out State laws for 
management of fish and wildlife resources. If an agency has other 
jurisdictional responsibilities, the agency is considered the State 
fish and wildlife agency only when exercising responsibilities specific 
to management of the State's fish and wildlife resources.
    Subaccount means a record of financial transactions for groups of 
similar activities based on programs and subprograms. Each group has a 
unique number. Different subaccounts also distinguish between benefits 
to marine or freshwater fisheries in the programs and subprograms 
authorized by the Dingell-Johnson Sport Fish Restoration Act.
    Useful life means the period during which a federally funded 
capital improvement is capable of fulfilling its intended purpose with 
adequate routine maintenance.
    Wildlife means the indigenous or naturalized species of birds or 
mammals that are either:
    (1) Wild and free-ranging;
    (2) Held in a captive breeding program established to reintroduce 
individuals of a depleted indigenous species into previously occupied 
range; or
    (3) Under the jurisdiction of a State fish and wildlife agency.

Subpart B--State Fish and Wildlife Agency Eligibility


Sec.  80.10  Who is eligible to receive the benefits of the Acts?

    States acting through their fish and wildlife agencies are eligible 
for benefits of the Acts only if they pass and maintain legislation 
that:
    (a) Assents to the provisions of the Acts;
    (b) Ensures the conservation of fish and wildlife; and
    (c) Requires that revenue from hunting and fishing licenses be:
    (1) Controlled only by the State fish and wildlife agency; and
    (2) Used only for administration of the State fish and wildlife 
agency, which includes only the functions required to manage the agency 
and the fish- and wildlife-related resources for which the agency has 
authority under State law.


Sec.  80.11  How does a State become ineligible to receive the benefits 
of the Acts?

    A State becomes ineligible to receive the benefits of the Acts if 
it:
    (a) Fails materially to comply with any law, regulation, or term of 
a grant as it relates to acceptance and use of funds under the Acts;
    (b) Does not have legislation required at Sec.  80.10 or passes 
legislation contrary to the Acts; or
    (c) Diverts hunting and fishing license revenue from:
    (1) The control of the State fish and wildlife agency; or
    (2) Purposes other than the agency's administration.


Sec.  80.12  Does an agency have to confirm that it wants to receive an 
annual apportionment of funds?

    No. However, if a State fish and wildlife agency does not want to 
receive the annual apportionment of funds, it must notify the Service 
in writing within 60 days after receiving a preliminary certificate of 
apportionment.

Subpart C--License Revenue


Sec.  80.20  What does revenue from hunting and fishing licenses 
include?

    Hunting and fishing license revenue includes:
    (a) All proceeds from State-issued general or special hunting and 
fishing licenses, permits, stamps, tags, access and use fees, and other 
State charges to hunt or fish for recreational purposes. Revenue from 
licenses sold by vendors is net income to the State after deducting 
reasonable sales fees or similar amounts retained by vendors.
    (b) Real or personal property acquired with license revenue.
    (c) Income from the sale, lease, or rental of, granting rights to, 
or a fee for access to real or personal property acquired or 
constructed with license revenue.
    (d) Income from the sale, lease, or rental of, granting rights to, 
or a fee for access to a recreational opportunity, product, or 
commodity derived from real or personal property acquired, managed, 
maintained, or produced by using license revenue.
    (e) Interest, dividends, or other income earned on license revenue.
    (f) Reimbursements for expenditures originally paid with license 
revenue.
    (g) Payments received for services funded by license revenue.


Sec.  80.21  What if a State diverts license revenue from the control 
of its fish and wildlife agency?

    The Director may declare a State to be in diversion if it violates 
the requirements of Sec.  80.10 by diverting license revenue from the 
control of its fish and wildlife agency to purposes other than the 
agency's administration. The State is then ineligible to receive 
benefits under the relevant Act from the date the Director signs the 
declaration until the State resolves the diversion. Only the Director 
may declare a State to be in diversion, and only the Director may 
rescind the declaration.


Sec.  80.22  What must a State do to resolve a declaration of 
diversion?

    The State must complete the actions in paragraphs (a) through (e) 
of this section to resolve a declaration of diversion. The State must 
use a source of funds other than license revenue to fund the 
replacement of license revenue.
    (a) If necessary, the State must enact adequate legislative 
prohibitions to prevent diversions of license revenue.
    (b) The State fish and wildlife agency must replace all diverted 
cash derived from license revenue and the interest lost up to the date 
of repayment. It must enter into State records the receipt of this cash 
and interest.
    (c) The agency must receive either the revenue earned from diverted 
property during the period of diversion or the current market rental 
rate of any diverted property, whichever is greater.
    (d) The agency must take one of the following actions to resolve a 
diversion of real, personal, or intellectual property:
    (1) Regain management control of the property, which must be in 
about the same condition as before diversion;
    (2) Receive replacement property that meets the criteria in 
paragraph (e) of this section; or
    (3) Receive a cash amount at least equal to the current market 
value of the diverted property only if the Director agrees that the 
actions described in paragraphs (d)(1) and (d)(2) of this section are 
impractical.
    (e) To be acceptable under paragraph (d)(2) of this section:
    (1) Replacement property must have both:
    (i) Market value that at least equals the current market value of 
the diverted property; and
    (ii) Fish or wildlife benefits that at least equal those of the 
property diverted.

[[Page 46160]]

    (2) The Director must agree that the replacement property meets the 
requirements of paragraph (e)(1) of this section.


Sec.  80.23  Does a declaration of diversion affect a previous Federal 
obligation of funds?

    No. Federal funds obligated before the date that the Director 
declares a diversion remain available for expenditure without regard to 
the intervening period of the State's ineligibility. See Sec.  80.91 
for when a Federal obligation occurs.

Subpart D--Certification of License Holders


Sec.  80.30  Why must an agency certify the number of paid license 
holders?

    A State fish and wildlife agency must certify the number of people 
having paid licenses to hunt and paid licenses to fish because the 
Service uses these data in statutory formulas to apportion funds in the 
Wildlife Restoration and Sport Fish Restoration programs among the 
States.


Sec.  80.31  How does an agency certify the number of paid license 
holders?

    (a) A State fish and wildlife agency certifies the number of paid 
license holders by responding to the Director's annual request for the 
following information:
    (1) The number of people who have paid licenses to hunt in the 
State during the State-specified certification period (certification 
period); and
    (2) The number of people who have paid licenses to fish in the 
State during the certification period.
    (b) The agency director or his or her designee:
    (1) Must certify the information at paragraph (a) of this section 
in the format that the Director specifies;
    (2) Must provide documentation to support the accuracy of this 
information at the Director's request;
    (3) Is responsible for eliminating multiple counting of the same 
individuals in the information that he or she certifies; and
    (4) May use statistical sampling, automated record consolidation, 
or other techniques approved by the Director for this purpose.
    (c) If an agency director uses statistical sampling to eliminate 
multiple counting of the same individuals, he or she must ensure that 
the sampling is complete by the earlier of the following:
    (1) Five years after the last statistical sample; or
    (2) Before completing the first certification following any change 
in the licensing system that could affect the number of license 
holders.


Sec.  80.32  What is the certification period?

    A certification period must:
    (a) Be 12 consecutive months;
    (b) Correspond to the State's fiscal year or license year;
    (c) Be consistent from year to year unless the Director approves a 
change; and
    (d) End at least 1 year and no more than 2 years before the 
beginning of the Federal fiscal year in which the apportioned funds 
first become available for expenditure.


Sec.  80.33  How does an agency decide who to count as paid license 
holders in the annual certification?

    (a) A State fish and wildlife agency must count only those people 
who have a license issued:
    (1) In the license holder's name; or
    (2) With a unique identifier that is traceable to the license 
holder, who must be verifiable in State records.
    (b) An agency must follow the rules in this table in deciding how 
to count license holders in the annual certification:

------------------------------------------------------------------------
                                            How to count each license
         Type of license holder                       holder
------------------------------------------------------------------------
(1) A person who has either a paid       Once.
 hunting license or a paid sportfishing
 license even if the person is not
 required to have a paid license or is
 unable to hunt or fish.
(2) A person who has more than one paid  Once.
 hunting license because the person
 either voluntarily obtained them or
 was required to have more than one
 license.
(3) A person who has more than one paid  Once.
 sportfishing license because the
 person either voluntarily obtained
 them or was required to have more than
 one license.
(4) A person who has a paid single-year  Once in the certification
 hunting license or a paid single-year    period in which the license
 sportfishing license for which the       first becomes valid.
 agency receives at least $1 of net
 revenue. (Single-year licenses are
 valid for any length of time less than
 2 years.)
(5) A person who has a paid multiyear    Once in each certification
 hunting license or a paid multiyear      period in which the license is
 sportfishing license for which the       valid.
 agency receives at least $1 of net
 revenue for each year in which the
 license is valid. (Multiyear licenses
 must also meet the requirements at
 Sec.   80.35.)
(6) A person holding a paid single-year  Twice in the first
 combination license permitting both      certification period in which
 hunting and sportfishing for which the   the license is valid: once as
 agency receives at least $2 of net       a person who has a paid
 revenue.                                 hunting license, and once as a
                                          person who has a paid
                                          sportfishing license.
(7) A person holding a paid multiyear    Twice in each certification
 combination license permitting both      period in which the license is
 hunting and sportfishing for which the   valid; once as a person who
 agency receives at least $2 of net       has a paid hunting license,
 revenue for each year in which the       and once as a person who has a
 license is valid. (Multiyear licenses    paid sportfishing license.
 must also meet the requirements in
 Sec.   80.35.)
(8) A person who has a license that      Cannot be counted.
 allows the license holder only to trap
 animals or only to engage in
 commercial fishing or other commercial
 activities.
------------------------------------------------------------------------

Sec.  80.34  How does an agency calculate net revenue from a license?

    The State fish and wildlife agency must calculate net revenue from 
a license by subtracting the per-license costs of issuing the license 
from the revenue generated by the license. Examples of costs of issuing 
licenses are vendors' fees, automated license-system costs, licensing-
unit personnel costs, and the costs of printing and distribution.

[[Page 46161]]

Sec.  80.35  What additional requirements apply to multiyear licenses?

    The following additional requirements apply to multiyear licenses:
    (a) A multiyear license may be valid for either a specific or 
indeterminate number of years, but it must be valid for at least 2 
years.
    (b) The agency must receive net revenue from a multiyear license 
that is in close approximation to the net revenue received for a 
single-year license providing similar privileges:
    (1) Each year during the license period; or
    (2) At the time of sale as if it were a single-payment annuity, 
which is an investment of the license fee that results in the agency 
receiving at least the minimum required net revenue for each year of 
the license period.
    (c) An agency may spend a multiyear license fee as soon as the 
agency receives it as long as the fee provides the minimum required net 
revenue for the license period.
    (d) The agency must count only the licenses that meet the minimum 
required net revenue for the license period based on:
    (1) The duration of the license in the case of a multiyear license 
with a specified ending date; or
    (2) Whether the license holder remains alive.
    (e) The agency must obtain the Director's approval of its proposed 
technique to decide how many multiyear-license holders remain alive in 
the certification period. Some examples of techniques are statistical 
sampling, life-expectancy tables, and mortality tables.


Sec.  80.36  May an agency count license holders in the annual 
certification if the agency receives funds from the State to cover 
their license fees?

    If a State fish and wildlife agency receives funds from the State 
to cover fees for some license holders, the agency may count those 
license holders in the annual certification only under the following 
conditions:
    (a) The State funds to cover license fees must come from a source 
other than hunting- and fishing-license revenue.
    (b) The State must identify funds to cover license fees separately 
from other funds provided to the agency.
    (c) The agency must receive at least the average amount of State-
provided discretionary funds that it received for the administration of 
the State's fish and wildlife agency during the State's five previous 
fiscal years.
    (1) State-provided discretionary funds are those from the State's 
general fund that the State may increase or decrease if it chooses to 
do so.
    (2) Some State-provided funds are from special taxes, trust funds, 
gifts, bequests, or other sources specifically dedicated to the support 
of the State fish and wildlife agency. These funds typically fluctuate 
annually due to interest rates, sales, or other factors. They are not 
discretionary funds for purposes of this part as long as the State does 
not take any action to reduce the amount available to its fish and 
wildlife agency.
    (d) The agency must receive State funds that are at least equal to 
the fees charged for the single-year license providing similar 
privileges. If the State does not have a single-year license providing 
similar privileges, the Director must approve the fee paid by the State 
for those license holders.
    (e) The agency must receive and account for the State funds as 
license revenue.
    (f) The agency must issue licenses in the license holder's name or 
by using a unique identifier that is traceable to the license holder, 
who must be verifiable in State records.
    (g) The license fees must meet all other requirements of 50 CFR 80.


Sec.  80.37  What must an agency do if it becomes aware of errors in 
its certified license data?

    A State fish and wildlife agency must submit revised certified data 
on paid license holders within 90 days after it becomes aware of errors 
in its certified data. The State may become ineligible to participate 
in the benefits of the relevant Act if it becomes aware of errors in 
its certified data and does not resubmit accurate certified data within 
90 days.


Sec.  80.38  May the Service recalculate an apportionment if an agency 
submits revised data?

    The Service may recalculate an apportionment of funds based on 
revised certified license data under the following conditions:
    (a) If the Service receives revised certified data for a pending 
apportionment before the Director approves the final apportionment, the 
Service may recalculate the pending apportionment.
    (b) If the Service receives revised certified data for an 
apportionment after the Director has approved the final version of that 
apportionment, the Service may recalculate the final apportionment only 
if it would not reduce funds to other State fish and wildlife agencies.


Sec.  80.39  May the Director correct a Service error in apportioning 
funds?

    Yes. The Director may correct any error that the Service makes in 
apportioning funds.

Subpart E--Eligible Activities


Sec.  80.50  What activities are eligible for funding under the 
Pittman-Robertson Wildlife Restoration Act?

    The following activities are eligible for funding under the 
Pittman-Robertson Wildlife Restoration Act:
    (a) Wildlife Restoration program.
    (1) Restore and manage wildlife for the benefit of the public.
    (2) Conduct research on the problems of managing wildlife and its 
habitat if necessary to administer wildlife resources efficiently.
    (3) Obtain data to guide and direct the regulation of hunting.
    (4) Acquire real property suitable or capable of being made 
suitable for:
    (i) Wildlife habitat; or
    (ii) Public access for hunting or other wildlife-oriented 
recreation.
    (5) Restore, rehabilitate, improve, or manage areas of lands or 
waters as wildlife habitat.
    (6) Build structures or acquire equipment, goods, and services to:
    (i) Restore, rehabilitate, or improve lands or waters as wildlife 
habitat; or
    (ii) Provide public access for hunting or other wildlife-oriented 
recreation.
    (7) Operate or maintain:
    (i) Projects that the State fish and wildlife agency completed 
under the Pittman-Robertson Wildlife Restoration Act; or
    (ii) Facilities that the agency acquired or constructed with funds 
other than those authorized under the Pittman-Robertson Wildlife 
Restoration Act if these facilities are necessary to carry out 
activities authorized by the Pittman-Robertson Wildlife Restoration 
Act.
    (8) Coordinate grants in the Wildlife Restoration program and 
related programs and subprograms.
    (b) Wildlife Restoration--Basic Hunter Education and Safety 
subprogram.
    (1) Teach the skills, knowledge, and attitudes necessary to be a 
responsible hunter.
    (2) Construct, operate, or maintain firearm and archery ranges for 
public use.
    (c) Enhanced Hunter Education and Safety program.
    (1) Enhance programs for hunter education, hunter development, and 
firearm and archery safety. Hunter-development programs introduce 
individuals to and recruit them to take part in hunting, bow hunting, 
target shooting, or archery.

[[Page 46162]]

    (2) Enhance interstate coordination of hunter-education and 
firearm- and archery-range programs.
    (3) Enhance programs for education, safety, or development of bow 
hunters, archers, and shooters.
    (4) Enhance construction and development of firearm and archery 
ranges.
    (5) Update safety features of firearm and archery ranges.


Sec.  80.51  What activities are eligible for funding under the 
Dingell-Johnson Sport Fish Restoration Act?

    The following activities are eligible for funding under the 
Dingell-Johnson Sport Fish Restoration Act:
    (a) Sport Fish Restoration program.
    (1) Restore and manage sport fish for the benefit of the public.
    (2) Conduct research on the problems of managing fish and their 
habitat and the problems of fish culture if necessary to administer 
sport fish resources efficiently.
    (3) Obtain data to guide and direct the regulation of fishing. 
These data may be on:
    (i) Size and geographic range of sport fish populations;
    (ii) Changes in sport fish populations due to fishing, other human 
activities, or natural causes; and
    (iii) Effects of any measures or regulations applied.
    (4) Develop and adopt plans to restock sport fish and forage fish 
in the natural areas or districts covered by the plans; and obtain data 
to develop, carry out, and test the effectiveness of the plans.
    (5) Stock fish for recreational purposes.
    (6) Acquire real property suitable or capable of being made 
suitable for:
    (i) Sport fish habitat or as a buffer to protect that habitat; or
    (ii) Public access for sport fishing. Closures to sport fishing 
must be based on the recommendations of the State fish and wildlife 
agency for fish and wildlife management purposes.
    (7) Restore, rehabilitate, improve, or manage:
    (i) Aquatic areas adaptable for sport fish habitat; or
    (ii) Land adaptable as a buffer to protect sport fish habitat.
    (8) Build structures or acquire equipment, goods, and services to:
    (i) Restore, rehabilitate, or improve aquatic habitat for sport 
fish, or land as a buffer to protect aquatic habitat for sport fish; or
    (ii) Provide public access for sport fishing.
    (9) Construct, renovate, operate, or maintain pumpout and dump 
stations. A pumpout station is a facility that pumps or receives sewage 
from a type III marine sanitation device that the U.S. Coast Guard 
requires on some vessels. A dump station, also referred to as a ``waste 
reception facility,'' is specifically designed to receive waste from 
portable toilets on vessels.
    (10) Operate or maintain:
    (i) Projects that the State fish and wildlife agency completed 
under the Dingell-Johnson Sport Fish Restoration Act; or
    (ii) Facilities that the agency acquired or constructed with funds 
other than those authorized by the Dingell-Johnson Sport Fish 
Restoration Act if these facilities are necessary to carry out 
activities authorized by the Act.
    (11) Coordinate grants in the Sport Fish Restoration program and 
related programs and subprograms.
    (b) Sport Fish Restoration--Recreational Boating Access subprogram.
    (1) Acquire land for new facilities, build new facilities, or 
acquire, renovate, or improve existing facilities to create or improve 
public access to the waters of the United States or improve the 
suitability of these waters for recreational boating. A broad range of 
access facilities and associated amenities can qualify for funding, but 
they must provide benefits to recreational boaters. ``Facilities'' 
includes auxiliary structures necessary to ensure safe use of 
recreational boating access facilities.
    (2) Conduct surveys to determine the adequacy, number, location, 
and quality of facilities providing access to recreational waters for 
all sizes of recreational boats.
    (c) Sport Fish Restoration--Aquatic Resource Education subprogram. 
Enhance the public's understanding of water resources, aquatic life 
forms, and sport fishing, and develop responsible attitudes and ethics 
toward the aquatic environment.
    (d) Sport Fish Restoration--Outreach and Communications subprogram.
    (1) Improve communications with anglers, boaters, and the general 
public on sport fishing and boating opportunities.
    (2) Increase participation in sport fishing and boating.
    (3) Advance the adoption of sound fishing and boating practices 
including safety.
    (4) Promote conservation and responsible use of the aquatic 
resources of the United States.


Sec.  80.52  May an activity be eligible for funding if it is not 
explicitly eligible in this part?

    An activity may be eligible for funding even if this part does not 
explicitly designate it as an eligible activity if:
    (a) The State fish and wildlife agency justifies in the project 
statement how the activity will help carry out the purposes of the 
Pittman-Robertson Wildlife Restoration Act or the Dingell-Johnson Sport 
Fish Restoration Act; and
    (b) The Regional Director concurs with the justification.


Sec.  80.53  Are costs of State central services eligible for funding?

    Administrative costs in the form of overhead or indirect costs for 
State central services outside of the State fish and wildlife agency 
are eligible for funding under the Acts and must follow an approved 
cost allocation plan. These expenses must not exceed 3 percent of the 
funds apportioned annually to the State under the Acts.


Sec.  80.54  What activities are ineligible for funding?

    The following activities are ineligible for funding under the Acts, 
except when necessary to carry out project purposes approved by the 
Regional Director:
    (a) Law enforcement activities.
    (b) Public relations activities to promote the State fish and 
wildlife agency, other State administrative units, or the State.
    (c) Activities conducted for the primary purpose of producing 
income.
    (d) Activities, projects, or programs that promote or encourage 
opposition to the regulated taking of fish, hunting, or the trapping of 
wildlife.


Sec.  80.55  May an agency receive a grant to carry out part of a 
larger project?

    A State fish and wildlife agency may receive a grant to carry out 
part of a larger project that uses funds unrelated to the grant. The 
grant-funded part of the larger project must:
    (a) Result in an identifiable outcome consistent with the purposes 
of the grant program;
    (b) Be substantial in character and design;
    (c) Meet the requirements of Sec. Sec.  80.130 through 80.136 for 
any real property acquired under the grant and any capital improvements 
completed under the grant; and
    (d) Meet all other requirements of the grant program.


Sec.  80.56  How does a proposed project qualify as substantial in 
character and design?

    A proposed project qualifies as substantial in character and design 
if it:
    (a) Describes a need consistent with the Acts;
    (b) States a purpose and sets objectives, both of which are based 
on the need;

[[Page 46163]]

    (c) Uses a planned approach, appropriate procedures, and accepted 
principles of fish and wildlife conservation and management, research, 
or education; and
    (d) Is cost effective.

Subpart F--Allocation of Funds by an Agency


Sec.  80.60  What is the relationship between the Basic Hunter 
Education and Safety subprogram and the Enhanced Hunter Education and 
Safety program?

    The relationship between the Basic Hunter Education and Safety 
subprogram (Basic Hunter Education) and the Enhanced Hunter Education 
and Safety program (Enhanced Hunter Education) is as follows:

------------------------------------------------------------------------
                                  Basic Hunter         Enhanced Hunter
                                 Education funds       Education funds
------------------------------------------------------------------------
(a) Which activities are      Those listed at Sec.  Those listed at
 eligible for funding?.          80.50(a) and (b).   80.50(c), but see
                                                     80.60(d) under
                                                     Basic Hunter
                                                     Education funds.
(b) How long are funds        Two Federal fiscal    One Federal fiscal
 available for obligation?.    years.                year.
(c) What if funds are not     The Service may use   The Service
 fully obligated during the    unobligated funds     reapportions
 period of availability?       to carry out the      unobligated funds
                               Migratory Bird        to eligible States
                               Conservation Act      as Wildlife
                               (16 U.S.C. 715 et     Restoration funds
                               seq.).                for the following
                                                     fiscal year. States
                                                     are eligible to
                                                     receive funds only
                                                     if their Basic
                                                     Hunter Education
                                                     funds were fully
                                                     obligated in the
                                                     preceding fiscal
                                                     year for activities
                                                     at Sec.   80.50(b).
(d) What if funds are fully   If Basic Hunter       No special
 obligated during the period   Education funds are   provisions apply.
 of availability?              fully obligated for
                               activities listed
                               at 80.50(b), the
                               agency may use that
                               fiscal year's
                               Enhanced Hunter
                               Education funds for
                               eligible activities
                               related to Basic
                               Hunter Education,
                               Enhanced Hunter
                               Education, or the
                               Wildlife
                               Restoration
                               program.
------------------------------------------------------------------------

Sec.  80.61  What requirements apply to funds for the Recreational 
Boating Access subprogram?

    The requirements of this section apply to allocating and obligating 
funds for the Recreational Boating Access subprogram.
    (a) A State fish and wildlife agency must allocate funds from each 
annual apportionment under the Dingell-Johnson Sport Fish Restoration 
Act for use in the subprogram.
    (b) Over each 5-year period, the total allocation for the 
subprogram in each of the Service's geographic regions must average at 
least 15 percent of the Sport Fish Restoration funds apportioned to the 
States in that Region. As long as this requirement is met, an 
individual State agency may allocate more or less than 15 percent of 
its annual apportionment in a single Federal fiscal year with the 
Regional Director's approval.
    (c) The Regional Director calculates Regional allocation averages 
for separate 5-year periods that coincide with Federal fiscal years 
2008-2012, 2013-2017, 2018-2022, and each subsequent 5-year period.
    (d) If the total Regional allocation for a 5-year period is less 
than 15 percent, the State agencies may, in a memorandum of 
understanding, agree among themselves which of them will make the 
additional allocations to eliminate the Regional shortfall.
    (e) This paragraph applies if State fish and wildlife agencies do 
not agree on which of them will make additional allocations to bring 
the average Regional allocation to at least 15 percent over a 5-year 
period. If the agencies do not agree:
    (1) The Regional Director may require States in the Region to make 
changes needed to achieve the minimum 15-percent Regional average 
before the end of the fifth year; and
    (2) The Regional Director must not require a State to increase or 
decrease its allocation if the State has allocated at least 15 percent 
over the 5-year period.
    (f) A Federal obligation of these allocated funds must occur by the 
end of the fourth consecutive Federal fiscal year after the Federal 
fiscal year in which the funds first became available for allocation.
    (g) If the agency's application to use these funds has not led to a 
Federal obligation by that time, these allocated funds become available 
for reapportionment among the State fish and wildlife agencies for the 
following fiscal year.


Sec.  80.62  What limitations apply to spending on the Aquatic Resource 
Education and the Outreach and Communications subprograms?

    The limitations in this section apply to State fish and wildlife 
agency spending on the Aquatic Resource Education and Outreach and 
Communications subprograms.
    (a) Each State's fish and wildlife agency may spend a maximum of 15 
percent of the annual amount apportioned to the State from the Sport 
Fish Restoration and Boating Trust Fund for activities in both 
subprograms. The 15-percent maximum applies to both subprograms as if 
they were one.
    (b) The 15-percent maximum for the subprograms does not apply to 
the Commonwealths of Puerto Rico and the Northern Mariana Islands, the 
District of Columbia, and the territories of Guam, the U.S. Virgin 
Islands, and American Samoa. These jurisdictions may spend more than 15 
percent of their annual apportionments for both subprograms with the 
approval of the Regional Director.


Sec.  80.63  Does an agency have to allocate costs in multipurpose 
projects and facilities?

    Yes. A State fish and wildlife agency must allocate costs in 
multipurpose projects and facilities. A grant-funded project or 
facility is multipurpose if it carries out the purposes of:
    (a) A single grant program under the Acts; and
    (b) Another grant program under the Acts, a grant program not under 
the Acts, or an activity unrelated to grants.


Sec.  80.64  How does an agency allocate costs in multipurpose projects 
and facilities?

    A State fish and wildlife agency must allocate costs in 
multipurpose projects based on the uses or benefits for each purpose 
that will result from the completed project or facility. The agency 
must describe the method used to allocate costs in multipurpose 
projects or facilities in the project

[[Page 46164]]

statement included in the grant application.


Sec.  80.65  Does an agency have to allocate funds between marine and 
freshwater fisheries projects?

    Yes. Each coastal State's fish and wildlife agency must equitably 
allocate the funds apportioned under the Dingell-Johnson Sport Fish 
Restoration Act between projects with benefits for marine fisheries and 
projects with benefits for freshwater fisheries.
    (a) The subprograms authorized by the Dingell-Johnson Sport Fish 
Restoration Act do not have to allocate funding in the same manner as 
long as the State fish and wildlife agency equitably allocates Dingell-
Johnson Sport Fish Restoration funds as a whole between marine and 
freshwater fisheries.
    (b) The coastal States for purposes of this allocation are:
    (1) Alabama, Alaska, California, Connecticut, Delaware, Florida, 
Georgia, Hawaii, Louisiana, Maine, Maryland, Massachusetts, 
Mississippi, New Hampshire, New Jersey, New York, North Carolina, 
Oregon, Rhode Island, South Carolina, Texas, Virginia, and Washington;
    (2) The Commonwealths of Puerto Rico and the Northern Mariana 
Islands; and
    (3) The territories of Guam, the U.S. Virgin Islands, and American 
Samoa.


Sec.  80.66  What requirements apply to allocation of funds between 
marine and freshwater fisheries projects?

    The requirements of this section apply to allocation of funds 
between marine and freshwater fisheries projects.
    (a) When a State fish and wildlife agency allocates and obligates 
funds it must meet the following requirements:
    (1) The ratio of total funds obligated for marine fisheries 
projects to total funds obligated for marine and freshwater fisheries 
projects combined must equal the ratio of resident marine anglers to 
the total number of resident anglers in the State; and
    (2) The ratio of total funds obligated for freshwater fisheries 
projects to total funds obligated for marine and freshwater fisheries 
projects combined must equal the ratio of resident freshwater anglers 
to the total number of resident anglers in the State.
    (b) A resident angler is one who fishes for recreational purposes 
in the same State where he or she maintains legal residence.
    (c) Agencies must determine the relative distribution of resident 
anglers in the State between those that fish in marine environments and 
those that fish in freshwater environments. Agencies must use the 
National Survey of Fishing, Hunting, and Wildlife-associated Recreation 
or another statistically reliable survey or technique approved by the 
Regional Director for this purpose.
    (d) If an agency uses statistical sampling to determine the 
relative distribution of resident anglers in the State between those 
that fish in marine environments and those that fish in freshwater 
environments, the sampling must be complete by the earlier of the 
following:
    (1) Five years after the last statistical sample; or
    (2) Before completing the first certification following any change 
in the licensing system that could affect the number of sportfishing 
license holders.
    (e) The amounts allocated from each year's apportionment do not 
necessarily have to result in an equitable allocation for each year. 
However, the amounts allocated over a variable period, not to exceed 3 
years, must result in an equitable allocation between marine and 
freshwater fisheries projects.
    (f) Agencies that fail to allocate funds equitably between marine 
and freshwater fisheries projects may become ineligible to use Sport 
Fish Restoration program funds. These agencies must remain ineligible 
until they demonstrate to the Director that they have allocated the 
funds equitably.


Sec.  80.67  May an agency finance an activity from more than one 
annual apportionment?

    A State fish and wildlife agency may use funds from more than one 
annual apportionment to finance high-cost projects, such as 
construction or acquisition of lands or interests in lands, including 
water rights. An agency may do this in either of the following ways:
    (a) Finance the entire cost of the acquisition or construction from 
a non-Federal funding source. The Service will reimburse funds to the 
agency in succeeding apportionment years according to a plan approved 
by the Regional Director and subject to the availability of funds.
    (b) Negotiate an installment purchase or contract in which the 
agency pays periodic and specified amounts to the seller or contractor 
according to a plan that schedules either reimbursements or advances of 
funds immediately before need. The Service will reimburse or advance 
funds to the agency according to a plan approved by the Regional 
Director and subject to the availability of funds.


Sec.  80.68  What requirements apply to financing an activity from more 
than one annual apportionment?

    The following conditions apply to financing an activity from more 
than one annual apportionment:
    (a) A State fish and wildlife agency must agree to complete the 
project even if Federal funds are not available. If an agency does not 
complete the project, it must recover any expended Federal funds that 
did not result in commensurate wildlife or sport-fishery benefits. The 
agency must then reallocate the recovered funds to approved projects in 
the same program.
    (b) The project statement included with the application must have a 
complete schedule of payments to finish the project.
    (c) Interest and other financing costs may be allowable subject to 
the restrictions in the applicable Federal Cost Principles.

Subpart G--Application for a Grant


Sec.  80.80  How does an agency apply for a grant?

    (a) An agency applies for a grant by sending the Regional Director:
    (1) Completed standard forms that are:
    (i) Approved by the Office of Management and Budget for the grant 
application process; and
    (ii) Available on the Federal Web site for electronic grant 
applications at http://www.grants.gov; and
    (2) Information required for a comprehensive-management-system 
grant or a project-by-project grant.
    (b) The director of the State fish and wildlife agency or his or 
her designee must sign all standard forms submitted in the application 
process.
    (c) The agency must send copies of all standard forms and 
supporting information to the State Clearinghouse or Single Point of 
Contact before sending it to the Regional Director if the State 
supports this process under Executive Order 12372, Intergovernmental 
Review of Federal Programs.


Sec.  80.81  What must an agency submit when applying for a 
comprehensive-management-system grant?

    A State fish and wildlife agency must submit the following 
documents when applying for a comprehensive-management-system grant:
    (a) The standard form for an application for Federal assistance in 
a mandatory grant program.
    (b) The standard forms for assurances for nonconstruction programs 
and construction programs as applicable. Agencies may submit these 
standard forms for assurances annually to the

[[Page 46165]]

Regional Director for use with all applications for Federal assistance 
in the programs and subprograms under the Acts.
    (c) A statement of cost estimates by subaccount. Agencies may 
obtain the subaccount numbers from the Service's Regional Division of 
Wildlife and Sport Fish Restoration.
    (d) Supporting documentation explaining how the proposed work 
complies with the Acts, the provisions of this part, and other 
applicable laws and regulations.
    (e) A statement of the agency's intent to carry out and fund part 
or all of its comprehensive management system through a grant.
    (f) A description of the agency's comprehensive management system 
including inventory, strategic plan, operational plan, and evaluation. 
``Inventory'' refers to the process or processes that an agency uses 
to:
    (1) Determine actual, projected, and desired resource and asset 
status; and
    (2) Identify management problems, issues, needs, and opportunities.
    (g) A description of the State fish and wildlife agency program 
covered by the comprehensive management system.
    (h) Contact information for the State fish and wildlife agency 
employee who is directly responsible for the integrity and operation of 
the comprehensive management system.
    (i) A description of how the public can take part in decisionmaking 
for the comprehensive management system.


Sec.  80.82  What must an agency submit when applying for a project-by-
project grant?

    A State fish and wildlife agency must submit the following 
documents when applying for a project-by-project grant:
    (a) The standard form for an application for Federal assistance in 
a mandatory grant program.
    (b) The standard forms for assurances for nonconstruction programs 
and construction programs as applicable. Agencies may submit these 
standard forms for assurances annually to the Regional Director for use 
with all applications for Federal assistance in the programs and 
subprograms under the Acts.
    (c) A project statement that describes each proposed project and 
provides the following information:
    (1) Need. Explain why the project is necessary and how it fulfills 
the purposes of the relevant Act.
    (2) Purpose and Objectives. State the purpose and objectives, and 
base them on the need. The purpose states the desired outcome of the 
proposed project in general or abstract terms. The objectives state the 
desired outcome of the proposed project in terms that are specific and 
quantified.
    (3) Results or benefits expected.
    (4) Approach. Describe the methods used to achieve the stated 
objectives.
    (5) Useful life. Propose a useful life for each capital 
improvement, and reference the method used to determine the useful life 
of a capital improvement with a value greater than $100,000.
    (6) Geographic location.
    (7) Principal investigator for research projects. Record the 
principal investigator's name, work address, and work telephone number.
    (8) Program income.
    (i) Estimate the amount of program income that the project is 
likely to generate.
    (ii) Indicate the method or combination of methods (deduction, 
addition, or matching) of applying program income to Federal and non-
Federal outlays.
    (iii) Request the Regional Director's approval for the matching 
method. Describe how the agency proposes to use the program income and 
the expected results. Describe the essential need for using program 
income as match.
    (iv) Indicate whether the agency wants to treat program income that 
it earns after the grant period as license revenue or additional 
funding for purposes consistent with the grant or program.
    (v) Indicate whether the agency wants to treat program income that 
the subgrantee earns as license revenue, additional funding for the 
purposes consistent with the grant or subprogram, or income subject 
only to the terms of the subgrant agreement.
    (9) Budget narrative. Provide costs by project and subaccount with 
additional information sufficient to show that the project is cost 
effective. Agencies may obtain the subaccount numbers from the 
Service's Regional Division of Wildlife and Sport Fish Restoration. 
Describe any item that requires the Service's approval and estimate its 
cost. Examples are preaward costs and capital expenditures for land, 
buildings, and equipment. Include a schedule of payments to finish the 
project if an agency proposes to use funds from two or more annual 
apportionments.
    (10) Multipurpose projects. Describe the method for allocating 
costs in multipurpose projects and facilities as described in 
Sec. Sec.  80.63 and 80.64.
    (11) Relationship with other grants. Describe any relationship 
between this project and other work funded by Federal grants that is 
planned, anticipated, or underway.
    (12) Timeline. Describe significant milestones in completing the 
project and any accomplishments to date.
    (13) General. Provide information in the project statement that:
    (i) Shows that the proposed activities are eligible for funding and 
substantial in character and design; and
    (ii) Enables the Service to comply with the applicable requirements 
of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 and 
4331-4347), the Endangered Species Act of 1973 (16 U.S.C. 1531 et 
seq.), the National Historic Preservation Act (16 U.S.C. 470s), and 
other laws, regulations, and policies.


Sec.  80.83  What is the Federal share of allowable costs?

    (a) The Regional Director must provide at least 10 percent and no 
more than 75 percent of the allowable costs of a grant-funded project 
to the fish and wildlife agencies of the 50 States. The Regional 
Director generally approves any Federal share from 10 to 75 percent as 
proposed by one of the 50 States if the:
    (1) Funds are available; and
    (2) Application is complete and consistent with laws, regulations, 
and policies.
    (b) The Regional Director may provide funds to the District of 
Columbia to pay 75 to 100 percent of the allowable costs of a grant-
funded project in a program or subprogram authorized by the Dingell-
Johnson Sport Fish Restoration Act. The Regional Director decides on 
the specific Federal share between 75 and 100 percent based on what he 
or she decides is fair, just, and equitable. The Regional Director may 
reduce the Federal share to less than 75 percent of allowable project 
costs only if the District of Columbia voluntarily provides match to 
pay the remaining allowable costs. However, the Regional Director must 
not reduce the Federal share below 10 percent unless he or she follows 
the procedure at paragraph (d) of this section.
    (c) The Regional Director may provide funds to pay 75 to 100 
percent of the allowable costs of a project funded by a grant to a fish 
and wildlife agency of the Commonwealths of Puerto Rico and the 
Northern Mariana Islands and the territories of Guam, the U.S. Virgin 
Islands, and American Samoa. The Regional Director decides on the 
specific Federal share between 75 and 100 percent based on what he or 
she decides is fair, just, and equitable. The Regional Director may 
reduce the Federal share to less than 75 percent of allowable project 
costs only if the Commonwealth or territorial fish and

[[Page 46166]]

wildlife agency voluntarily provides match to pay the remaining 
allowable costs. However, the Regional Director must not reduce the 
Federal share below 10 percent unless he or she follows the procedure 
at paragraph (d) of this section. The Federal share of allowable costs 
for a grant-funded project for the Commonwealth of the Northern Mariana 
Islands and the territories of Guam, the U.S. Virgin Islands, and 
American Samoa may be affected by the waiver process described at Sec.  
80.84(c).
    (d) The Regional Director may waive the 10-percent minimum Federal 
share of allowable costs if the State, District of Columbia, 
Commonwealth, or territory requests a waiver and provides compelling 
reasons to justify why it is necessary for the Federal government to 
fund less than 10 percent of the allowable costs of a project.


Sec.  80.84  How does the Service establish the non-Federal share of 
allowable costs?

    (a) To establish the non-Federal share of a grant-funded project 
for the 50 States, the Regional Director approves an application for 
Federal assistance in which the State fish and wildlife agency proposes 
the specific non-Federal share by estimating the Federal and match 
dollars, consistent with Sec.  80.83(a).
    (b) To establish the non-Federal share of a grant-funded project 
for the District of Columbia and the Commonwealth of Puerto Rico, the 
Regional Director:
    (1) Decides which percentage is fair, just, and equitable for the 
Federal share consistent with Sec.  80.83(b) through (d);
    (2) Subtracts the Federal share percentage from 100 percent to 
determine the percentage of non-Federal share; and
    (3) Applies the percentage of non-Federal share to the allowable 
costs of a grant-funded project to determine the match requirement.
    (c) To establish the non-Federal share of a grant-funded project 
for the Commonwealth of the Northern Mariana Islands and the 
territories of Guam, the U.S. Virgin Islands, and American Samoa, the 
Regional Director must first calculate a preliminary percentage of non-
Federal share in the same manner as described in paragraph (b) of this 
section. Following 48 U.S.C. 1469a, the Regional Director must then 
waive the first $200,000 of match to establish the final non-Federal 
match requirement for a project that includes funding from only one 
grant program or subprogram. If a project includes funds from more than 
one grant program or subprogram, the Regional Director must waive the 
first $200,000 of match applied to the funds for each program and 
subprogram.


Sec.  80.85  What requirements apply to match?

    The requirements that apply to match include:
    (a) Match may be in the form of cash or in-kind contributions.
    (b) Unless authorized by Federal law, the State fish and wildlife 
agency or any other entity must not:
    (1) Use as match Federal funds or the value of an in-kind 
contribution acquired with Federal funds; or
    (2) Use the cost or value of an in-kind contribution to satisfy a 
match requirement if the cost or value has been or will be used to 
satisfy a match requirement of another Federal grant, cooperative 
agreement, or contract.
    (c) The agency must fulfill match requirements at the:
    (1) Grant level if the grant has funds from a single subaccount; or
    (2) Subaccount level if the grant has funds from more than one 
subaccount.

Subpart H--General Grant Administration


Sec.  80.90  What are the grantee's responsibilities?

    A State fish and wildlife agency as a grantee is responsible for 
all of the actions required by this section.
    (a) Compliance with all applicable Federal, State, and local laws 
and regulations.
    (b) Supervision to ensure that the work follows the terms of the 
grant, including:
    (1) Proper and effective use of funds;
    (2) Maintenance of records;
    (3) Submission of complete and accurate Federal financial reports 
and performance reports by the due dates in the terms and conditions of 
the grant; and
    (4) Regular inspection and monitoring of work in progress.
    (c) Selection and supervision of personnel to ensure that:
    (1) Adequate and competent personnel are available to complete the 
grant-funded work on schedule; and
    (2) Project personnel meet time schedules, accomplish the proposed 
work, meet objectives, and submit the required reports.
    (d) Settlement of all procurement-related contractual and 
administrative issues.
    (e) Giving reasonable access to work sites and records by employees 
and contractual auditors of the Service, the Department of the 
Interior, and the Comptroller General of the United States.
    (1) Access is for the purpose of:
    (i) Monitoring progress, conducting audits, or other reviews of 
grant-funded projects; and
    (ii) Monitoring the use of license revenue.
    (2) Regulations on the uniform administrative requirements for 
grants awarded by the Department of the Interior describe the records 
that are subject to these access requirements.
    (3) The closeout of an award does not affect the grantee's 
responsibilities described in this section.
    (f) Control of all assets acquired under the grant to ensure that 
they serve the purpose for which acquired throughout their useful life.


Sec.  80.91  What is a Federal obligation of funds and how does it 
occur?

    An obligation of funds is a legal liability to disburse funds 
immediately or at a later date as a result of a series of actions. All 
of these actions must occur to obligate funds for the formula-based 
grant programs authorized by the Acts:
    (a) The Service sends an annual certificate of apportionment to a 
State fish and wildlife agency, which tells the agency how much funding 
is available according to formulas in the Acts.
    (b) The agency sends the Regional Director an application for 
Federal assistance to use the funds available to it under the Acts and 
commits to provide the required match to carry out projects that are 
substantial in character and design.
    (c) The Regional Director notifies the agency that he or she 
approves the application for Federal assistance and states the terms 
and conditions of the grant.
    (d) The agency accepts the terms and conditions of the grant in one 
of the following ways:
    (1) Starts work on the grant-funded project by placing an order, 
entering into a contract, awarding a subgrant, receiving goods or 
services, or otherwise incurring allowable costs during the grant 
period that will require payment immediately or in the future;
    (2) Draws down funds for an allowable activity under the grant; or
    (3) Sends the Regional Director a letter, fax, or e-mail accepting 
the terms and conditions of the grant.


Sec.  80.92  How long are funds available for a Federal obligation?

    Funds are available for a Federal obligation during the fiscal year 
for which they are apportioned and until the close of the following 
fiscal year except for funds in the Enhanced Hunter Education and 
Safety program and the Recreational Boating Access subprogram. See 
Sec. Sec.  80.60 and 80.61 for the length of time that funds are 
available in this program and subprogram.

[[Page 46167]]

Sec.  80.93  When may an agency incur costs under a grant?

    A State fish and wildlife agency may incur costs under a grant from 
the effective date of the grant period to the end of the grant period 
except for preaward costs that meet the conditions in Sec.  80.94.


Sec.  80.94  May an agency incur costs before the beginning of the 
grant period?

    (a) A State fish and wildlife agency may incur costs of a proposed 
project before the beginning of the grant period (preaward costs). 
However, the agency has no assurance that it will receive reimbursement 
until the Regional Director awards a grant that incorporates a project 
statement demonstrating that the preaward costs conform to all of the 
conditions in paragraph (b) of this section.
    (b) Preaward costs must meet the following requirements:
    (1) The costs are necessary and reasonable for accomplishing the 
grant objectives.
    (2) The Regional Director would have approved the costs if the 
State fish and wildlife agency incurred them during the grant period.
    (3) The agency incurs these costs in anticipation of the grant and 
in conformity with the negotiation of the award with the Regional 
Director.
    (4) The activities associated with the preaward costs comply with 
all laws, regulations, and policies applicable to a grant-funded 
project.
    (5) The agency must:
    (i) Obtain the Regional Director's concurrence that the Service 
will be able to comply with the applicable laws, regulations, and 
policies before the agency starts work on the ground; and
    (ii) Provide the Service with all the information it needs with 
enough lead time for it to comply with the applicable laws, 
regulations, and policies.
    (6) The agency must not complete the project before the beginning 
of the grant period unless the Regional Director concurs that doing so 
is necessary to take advantage of temporary circumstances favorable to 
the project or to meet legal deadlines. An agency completes a project 
when it incurs all costs and finishes all work necessary to achieve the 
project objectives.
    (c) The agency can receive reimbursement for preaward costs only 
after the beginning of the grant period.


Sec.  80.95  How does an agency receive Federal grant funds?

    (a) A State fish and wildlife agency may receive Federal grant 
funds through either:
    (1) A request for reimbursement; or
    (2) A request for an advance of funds if the agency maintains or 
demonstrates that it will maintain procedures to minimize time between 
transfer of funds and disbursement by the agency or its subgrantee.
    (b) An agency must use the following procedures to receive a 
reimbursement or an advance of funds:
    (1) Request funds through an electronic payment system designated 
by the Regional Director; or
    (2) Request funds on a standard form for that purpose only if the 
agency is unable to use the electronic payment system.
    (c) The Regional Director will reimburse or advance funds only to 
the office or official designated by the agency and authorized by State 
law to receive public funds for the State.
    (d) All payments are subject to final determination of allowability 
based on audit or a Service review. The State fish and wildlife agency 
must repay any overpayment as directed by the Regional Director.
    (e) The Regional Director may withhold payments pending receipt of 
all required reports or documentation for the project.


Sec.  80.96  May an agency use Federal funds without using match?

    (a) The State fish and wildlife agency must not draw down any 
Federal funds for a grant-funded project under the Acts in greater 
proportion to the use of match than total Federal funds bear to total 
match unless:
    (1) The grantee draws down Federal grant funds to pay for 
construction, including land acquisition;
    (2) An in-kind contribution of match is not yet available for 
delivery to the grantee or subgrantee; or
    (3) The project is not at the point where it can accommodate an in-
kind contribution.
    (b) If an agency draws down Federal funds in greater proportion to 
the use of match than total Federal funds bear to total match under the 
conditions described at paragraphs (a)(1) through (a)(3) of this 
section, the agency must:
    (1) Obtain the Regional Director's prior approval, and
    (2) Satisfy the project's match requirement before it submits the 
final Federal financial report.


Sec.  80.97  May an agency barter goods or services to carry out a 
grant-funded project?

    Yes. A State fish and wildlife agency may barter to carry out a 
grant-funded project. A barter transaction is the exchange of goods or 
services for other goods or services without the use of cash. Barter 
transactions are subject to the Cost Principles at 2 CFR part 220, 2 
CFR part 225, or 2 CFR part 230.


Sec.  80.98  How must an agency report barter transactions?

    (a) A State fish and wildlife agency must follow the requirements 
in the following table when reporting barter transactions in the 
Federal financial report:

------------------------------------------------------------------------
             If * * *                       Then the agency * * *
------------------------------------------------------------------------
(1) The goods or services           (i) Does not have to report bartered
 exchanged have the same market      goods or services as program income
 value,.                             or grant expenses in the Federal
                                     financial report; and
                                    (ii) Must disclose that barter
                                     transactions occurred and state
                                     what was bartered in the Remarks
                                     section of the report.
(2) The market value of the goods   Must report the difference in market
 or services relinquished exceeds    value as grant expenses in the
 the market value of the goods and   Federal financial report.
 services received,.
(3) The market value of the goods   Must report the difference in market
 or services received exceeds the    value as program income in the
 market value of the goods and       Federal financial report.
 services relinquished,.
(4) The barter transaction was      (i) Does not have to report bartered
 part of a cooperative farming or    goods or services as program income
 grazing arrangement meeting the     or grant expenses in the Federal
 requirements in paragraph (b) of    financial report; and
 this section,.                     (ii) Must disclose that barter
                                     transactions occurred and identify
                                     what was bartered in the Remarks
                                     section of the Federal financial
                                     report.
------------------------------------------------------------------------


[[Page 46168]]

    (b) For purposes of paragraph (a)(4) of this section, cooperative 
farming or grazing is an arrangement in which an agency:
    (1) Allows an agricultural producer to farm or graze livestock on 
land under the agency's control; and
    (2) Designs the farming or grazing to advance the agency's fish and 
wildlife management objectives.


Sec.  80.99  Are symbols available to identify projects?

    Yes. The following distinctive symbols are available to identify 
projects funded by the Acts and products on which taxes and duties have 
been collected to support the Acts:
    (a) The symbol of the Pittman-Robertson Wildlife Restoration Act 
follows:
[GRAPHIC] [TIFF OMITTED] TR01AU11.031

    (b) The symbol of the Dingell-Johnson Sport Fish Restoration Act 
follows:
[GRAPHIC] [TIFF OMITTED] TR01AU11.032

    (c) The symbol of the Acts when used in combination follows:
    [GRAPHIC] [TIFF OMITTED] TR01AU11.033
    
Sec.  80.100  Does an agency have to display one of the symbols in this 
part on a completed project?

    No. A State fish and wildlife agency does not have to display one 
of the symbols in Sec.  80.99 on a project completed under the Acts. 
However, the Service encourages agencies to display the appropriate 
symbol following these requirements or guidelines:
    (a) An agency may display the appropriate symbol(s) on:
    (1) Areas such as wildlife-management areas, shooting ranges, and 
sportfishing and boating-access facilities that were acquired, 
developed, operated, or maintained with funds authorized by the Acts; 
and
    (2) Printed or Web-based material or other visual representations 
of project accomplishments.
    (b) An agency may require a subgrantee to display the appropriate 
symbol or symbols in the places described in paragraph (a) of this 
section.
    (c) The Director or Regional Director may authorize an agency to 
use the symbols in a manner other than as described in paragraph (a) of 
this section.
    (d) The Director or Regional Director may authorize other persons, 
organizations, agencies, or governments to use the symbols for purposes 
related to the Acts by entering into a written agreement with the user. 
An applicant must state how it intends to use the symbol(s), to what it 
will attach the symbol(s), and the relationship to the specific Act.
    (e) The user of the symbol(s) must indemnify and defend the United 
States and hold it harmless from any claims, suits, losses, and damages 
from:
    (1) Any allegedly unauthorized use of any patent, process, idea, 
method, or device by the user in connection with its use of the 
symbol(s), or any other alleged action of the user; and
    (2) Any claims, suits, losses, and damages arising from alleged 
defects in the articles or services associated with the symbol(s).
    (f) The appearance of the symbol(s) on projects or products 
indicates that the manufacturer of the product pays excise taxes in 
support of the respective Act(s), and that the project was funded under 
the respective Act(s) (26 U.S.C. 4161, 4162, 4181, 4182, 9503, and 
9504). The Service and the Department of the Interior make no 
representation or endorsement whatsoever by the display of the 
symbol(s) as to the quality, utility, suitability, or safety of any 
product, service, or project associated with the symbol(s).
    (g) No one may use any of the symbols in any other manner unless 
the Director or Regional Director authorizes it. Unauthorized use of 
the symbol(s) is a violation of 18 U.S.C. 701 and subjects the violator 
to possible fines and imprisonment.

Subpart I--Program Income


Sec.  80.120  What is program income?

    (a) Program income is gross income received by the grantee or 
subgrantee and earned only as a result of the grant during the grant 
period.
    (b) Program income includes revenue from:
    (1) Services performed under a grant;
    (2) Use or rental of real or personal property acquired, 
constructed, or managed with grant funds;
    (3) Payments by concessioners or contractors under an arrangement 
with the agency or subgrantee to provide a service in support of grant 
objectives on real property acquired, constructed, or managed with 
grant funds;
    (4) Sale of items produced under a grant;
    (5) Royalties and license fees for copyrighted material, patents, 
and inventions developed as a result of a grant; or
    (6) Sale of a product of mining, drilling, forestry, or agriculture 
during the period of a grant that supports the:
    (i) Mining, drilling, forestry, or agriculture; or
    (ii) Acquisition of the land on which these activities occurred.
    (c) Program income does not include:
    (1) Interest on grant funds, rebates, credits, discounts, or 
refunds;
    (2) Sales receipts retained by concessioners or contractors under 
an arrangement with the agency to provide a service in support of grant 
objectives on real property acquired, constructed, or managed with 
grant funds;
    (3) Cash received by the agency or by volunteer instructors to 
cover incidental costs of a class for hunter or aquatic-resource 
education;
    (4) Cooperative farming or grazing arrangements as described at 
Sec.  80.98; or
    (5) Proceeds from the sale of real property.


Sec.  80.121  May an agency earn program income?

    A State fish and wildlife agency may earn income from activities 
incidental to the grant purposes as long as producing income is not a 
primary purpose. The agency must account for income received from these 
activities in the project records and dispose of it according to the 
terms of the grant.


Sec.  80.122  May an agency deduct the costs of generating program 
income from gross income?

    (a) A State fish and wildlife agency may deduct the costs of 
generating program income from gross income when it calculates program 
income as long as the agency does not:

[[Page 46169]]

    (1) Pay these costs with:
    (i) Federal or matching cash under a Federal grant; or
    (ii) Federal cash unrelated to a grant.
    (2) Cover these costs by accepting:
    (i) Matching in-kind contributions for a Federal grant; or
    (ii) Donations of services, personal property, or real property 
unrelated to a Federal grant.
    (b) Examples of costs of generating program income that may qualify 
for deduction from gross income if they are consistent with paragraph 
(a) of this section are:
    (1) Cost of estimating the amount of commercially acceptable timber 
in a forest and marking it for harvest if the commercial harvest is 
incidental to a grant-funded habitat-management or facilities-
construction project.
    (2) Cost of publishing research results as a pamphlet or book for 
sale if the publication is incidental to a grant-funded research 
project.


Sec.  80.123  How may an agency use program income?

    (a) A State fish and wildlife agency may choose any of the three 
methods listed in paragraph (b) of this section for applying program 
income to Federal and non-Federal outlays. The agency may also use a 
combination of these methods. The method or methods that the agency 
chooses will apply to the program income that it earns during the grant 
period and to the program income that any subgrantee earns during the 
grant period. The agency must indicate the method that it wants to use 
in the project statement that it submits with each application for 
Federal assistance.
    (b) The three methods for applying program income to Federal and 
non-Federal outlays are in the following table:

------------------------------------------------------------------------
            Method                 Requirements for using the method
------------------------------------------------------------------------
(1) Deduction................  (i) The agency must deduct the program
                                income from total allowable costs to
                                determine the net allowable costs.
                               (ii) The agency must use program income
                                for current costs under the grant unless
                                the Regional Director authorizes
                                otherwise.
                               (iii) If the agency does not indicate the
                                method that it wants to use in the
                                project statement, then it must use the
                                deduction method.
(2) Addition.................  (i) The agency may add the program income
                                to the Federal and matching funds under
                                the grant.
                               (ii) The agency must use the program
                                income for the purposes of the grant and
                                under the terms of the grant.
(3) Matching.................  (i) The agency must request the Regional
                                Director's approval in the project
                                statement.
                               (ii) The agency must explain in the
                                project statement how the agency
                                proposes to use the program income, the
                                expected results, and why it is
                                essential to use program income as
                                match.
                               (iii) The Regional Director may approve
                                the use of the matching method if the
                                requirements of paragraph (c) of this
                                section are met.
------------------------------------------------------------------------

    (c) The Regional Director may approve the use of the matching 
method if the proposed use of the program income would:
    (1) Be consistent with the intent of the applicable Act or Acts; 
and
    (2) Result in at least one of the following:
    (i) The agency substitutes program income for at least some of the 
match that it would otherwise have to provide, and then uses this saved 
match for other fish or wildlife-related projects;
    (ii) The agency substitutes program income for at least some of the 
apportioned Federal funds, and then uses the saved Federal funds for 
additional eligible activities under the program; or
    (iii) A net benefit to the program.


Sec.  80.124  How may an agency use unexpended program income?

    If a State fish and wildlife agency has unexpended program income 
on its final Federal financial report, it may use the income under a 
subsequent grant for any activity eligible for funding in the grant 
program that generated the income.


Sec.  80.125  How must an agency treat income that it earns after the 
grant period?

    (a) The State fish and wildlife agency must treat program income 
that it earns after the grant period as either:
    (1) License revenue for the administration of the agency; or
    (2) Additional funding for purposes consistent with the grant or 
the program.
    (b) The agency must indicate its choice of one of the alternatives 
in paragraph (a) of this section in the project statement that the 
agency submits with each application for Federal assistance. If the 
agency does not record its choice in the project statement, the agency 
must treat the income earned after the grant period as license revenue.


Sec.  80.126  How must an agency treat income earned by a subgrantee 
after the grant period?

    (a) The State fish and wildlife agency must treat income earned by 
a subgrantee after the grant period as:
    (1) License revenue for the administration of the agency;
    (2) Additional funding for purposes consistent with the grant or 
the program; or
    (3) Income subject only to the terms of the subgrant agreement and 
any subsequent contractual agreements between the agency and the 
subgrantee.
    (b) The agency must indicate its choice of one of the above 
alternatives in the project statement that it submits with each 
application for Federal assistance. If the agency does not indicate its 
choice in the project statement, the subgrantee does not have to 
account for any income that it earns after the grant period unless 
required to do so in the subgrant agreement or in any subsequent 
contractual agreement.

Subpart J--Real Property


Sec.  80.130  Does an agency have to hold title to real property 
acquired under a grant?

    A State fish and wildlife agency must hold title to an ownership 
interest in real property acquired under a grant to the extent possible 
under State law.
    (a) Some States do not authorize their fish and wildlife agency to 
hold the title to real property that the agency manages. In these 
cases, the State or one of its administrative units may hold the title 
to grant-funded real property as long as the agency has the authority 
to manage the real property for its authorized purpose under the grant. 
The agency, the State, or another administrative unit of State 
government must not hold title to an undivided ownership interest in 
the real property concurrently with a subgrantee or any other entity.
    (b) An ownership interest is an interest in real property that 
gives the person who holds it the right to use and occupy a parcel of 
land or water and to exclude others. Ownership interests include fee 
and leasehold interests but not easements.

[[Page 46170]]

Sec.  80.131  Does an agency have to hold an easement acquired under a 
grant?

    A State fish and wildlife agency must hold an easement acquired 
under a grant, but it may share certain rights or responsibilities as 
described in paragraph (b) of this section if consistent with State 
law.
    (a) Any sharing of rights or responsibilities does not diminish the 
agency's responsibility to manage the easement for its authorized 
purpose.
    (b) The agency may share holding or enforcement of an easement only 
in the following situations:
    (1) The State or another administrative unit of State government 
may hold an easement on behalf of its fish and wildlife agency.
    (2) The agency may subgrant the concurrent right to hold the 
easement to a nonprofit organization or to a local or tribal 
government. A concurrent right to hold an easement means that both the 
State agency and the subgrantee hold the easement and share its rights 
and responsibilities.
    (3) The agency may subgrant a right of enforcement to a nonprofit 
organization or to a local or tribal government. This right of 
enforcement may allow the subgrantee to have reasonable access and 
entry to property protected under the easement for purposes of 
inspection, monitoring, and enforcement. The subgrantee's right of 
enforcement must not supersede and must be concurrent with the agency's 
right of enforcement.


Sec.  80.132  Does an agency have to control the land or water where it 
completes capital improvements?

    Yes. A State fish and wildlife agency must control the parcel of 
land and water on which it completes a grant-funded capital 
improvement. An agency must exercise this control by holding title to a 
fee or leasehold interest or through another legally binding agreement. 
Control must be adequate for the protection, maintenance, and use of 
the improvement for its authorized purpose during its useful life even 
if the agency did not acquire the parcel with grant funds.


Sec.  80.133  Does an agency have to maintain acquired or completed 
capital improvements?

    Yes. A State fish and wildlife agency is responsible for 
maintaining capital improvements acquired or completed under a grant to 
ensure that each capital improvement continues to serve its authorized 
purpose during its useful life.


Sec.  80.134  How must an agency use real property?

    (a) If a grant funds acquisition of an interest in a parcel of land 
or water, the State fish and wildlife agency must use it for the 
purpose authorized in the grant.
    (b) If a grant funds construction of a capital improvement, the 
agency must use the capital improvement for the purpose authorized in 
the grant during the useful life of the capital improvement. The agency 
must do this even if it did not use grant funds to:
    (1) Acquire the parcel on which the capital improvement is located; 
or
    (2) Build the structure in which the capital improvement is a 
component.
    (c) If a grant funds management, operation, or maintenance of a 
parcel of land or water, or a capital improvement, the agency must use 
it for the purpose authorized in the grant during the grant period. The 
agency must do this even if it did not acquire the parcel or construct 
the capital improvement with grant funds.
    (d) A State agency may allow commercial, recreational, and other 
secondary uses of a grant-funded parcel of land or water or capital 
improvement if these secondary uses do not interfere with the 
authorized purpose of the grant.


Sec.  80.135  What if an agency allows a use of real property that 
interferes with its authorized purpose?

    (a) When a State fish and wildlife agency allows a use of real 
property that interferes with its authorized purpose under a grant, the 
agency must fully restore the real property to its authorized purpose.
    (b) If the agency cannot fully restore the real property to its 
authorized purpose, it must replace the real property using non-Federal 
funds.
    (c) The agency must determine that the replacement property:
    (1) Is of at least equal value at current market prices; and
    (2) Has fish, wildlife, and public-use benefits consistent with the 
purposes of the original grant.
    (d) The Regional Director may require the agency to obtain an 
appraisal and appraisal review to estimate the value of the replacement 
property at current market prices if the agency cannot support its 
assessment of value.
    (e) The agency must obtain the Regional Director's approval of:
    (1) Its determination of the value and benefits of the replacement 
property; and
    (2) The documentation supporting this determination.
    (f) The agency may have a reasonable time, up to 3 years from the 
date of notification by the Regional Director, to restore the real 
property to its authorized purpose or acquire replacement property. If 
the agency does not restore the real property to its authorized purpose 
or acquire replacement property within 3 years, the Director may 
declare the agency ineligible to receive new grants in the program or 
programs that funded the original acquisition.


Sec.  80.136  Is it a diversion if an agency does not use grant-
acquired real property for its authorized purpose?

    If a State fish and wildlife agency does not use grant-acquired 
real property for its authorized purpose, a diversion occurs only if 
both of the following conditions apply:
    (a) The agency used license revenue as match for the grant; and
    (b) The unauthorized use is for a purpose other than management of 
the fish- and wildlife-related resources for which the agency has 
authority under State law.


Sec.  80.137  What if real property is no longer useful or needed for 
its original purpose?

    If the director of the State fish and wildlife agency and the 
Regional Director jointly decide that grant-funded real property is no 
longer useful or needed for its original purpose under the grant, the 
director of the agency must:
    (a) Propose another eligible purpose for the real property under 
the grant program and ask the Regional Director to approve this 
proposed purpose, or
    (b) Request disposition instructions for the real property under 
the process described at 43 CFR 12.71, ``Administrative and Audit 
Requirements and Cost Principles for Assistance Programs.''

Subpart K--Revisions and Appeals


Sec.  80.150  How does an agency ask for revision of a grant?

    (a) A State fish and wildlife agency must ask for revision of a 
project or grant by sending the Service the following documents:
    (1) The standard form approved by the Office of Management and 
Budget as an application for Federal assistance. The agency may use 
this form to update or request a change in the information that it 
submitted in an approved application. The director of the agency or his 
or her designee must sign this form.
    (2) A statement attached to the application for Federal assistance 
that explains:
    (i) How the requested revision would affect the information that 
the agency

[[Page 46171]]

submitted with the original grant application; and
    (ii) Why the requested revision is necessary.
    (b) An agency must send any requested revision of the purpose or 
objectives of a project or grant to the State Clearinghouse or Single 
Point of Contact if the State maintains this process under Executive 
Order 12372, Intergovernmental Review of Federal Programs.


Sec.  80.151  May an agency appeal a decision?

    An agency may appeal the Director's or Regional Director's decision 
on any matter subject to this part.
    (a) The State fish and wildlife agency must send the appeal to the 
Director within 30 days of the date that the Director or Regional 
Director mails or otherwise informs an agency of a decision.
    (b) The agency may appeal the Director's decision under paragraph 
(a) of this section to the Secretary within 30 days of the date that 
the Director mailed the decision. An appeal to the Secretary must 
follow procedures in 43 CFR part 4, subpart G, ``Special Rules 
Applicable to other Appeals and Hearings.''

Subpart L--Information Collection


Sec.  80.160  What are the information collection requirements of this 
part?

    (a) This part requires each State fish and wildlife agency to 
provide the following information to the Service. The State agency 
must:
    (1) Certify the number of people who have paid licenses to hunt and 
the number of people who have paid licenses to fish in a State during 
the State-specified certification period (OMB control number 1018-
0007).
    (2) Provide information for a grant application on a Governmentwide 
standard form (OMB control number 4040-0002).
    (3) Certify on a Governmentwide standard form that it:
    (i) Has the authority to apply for the grant;
    (ii) Has the capability to complete the project; and
    (iii) Will comply with the laws, regulations, and policies 
applicable to nonconstruction projects, construction projects, or both 
(OMB control numbers 4040-0007 and 4040-0009).
    (4) Provide a project statement that describes the need, purpose 
and objectives, results or benefits expected, approach, geographic 
location, explanation of costs, and other information that demonstrates 
that the project is eligible under the Acts and meets the requirements 
of the Federal Cost Principles and the laws, regulations, and policies 
applicable to the grant program (OMB control number 1018-0109).
    (5) Change or update information provided to the Service in a 
previously approved application (OMB control number 1018-0109).
    (6) Report on a Governmentwide standard form on the status of 
Federal grant funds and any program income earned (OMB control number 
0348-0061).
    (7) Report as a grantee on progress in completing the grant-funded 
project (OMB control number 1018-0109).
    (b) The authorizations for information collection under this part 
are in the Acts and in 43 CFR part 12, subpart C, ``Uniform 
Administrative Requirements for Grants and Cooperative Agreements to 
State and Local Governments.''
    (c) Send comments on the information collection requirements to: 
U.S. Fish and Wildlife Service, Information Collection Clearance 
Officer, 4401 North Fairfax Drive, MS 2042-PDM, Arlington, VA 22203.

    Dated July 19, 2011.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-19206 Filed 7-29-11; 8:45 am]
BILLING CODE 4310-55-P