Boating Infrastructure Grant Program, 26149-26174 [2015-09961]
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Vol. 80
Wednesday,
No. 87
May 6, 2015
Part II
Department of the Interior
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Fish and Wildlife Service
50 CFR Part 86
Boating Infrastructure Grant Program; Final Rule
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 86
[Docket No. FWS–R9–WSR–2011–0083;
FVWF941009000007B–XXX–FF09W11000]
RIN 1018–AW64
Boating Infrastructure Grant Program
AGENCY:
Fish and Wildlife Service,
Interior.
Final rule.
ACTION:
We, the U.S. Fish and
Wildlife Service (Service), are revising
regulations governing the
administration of the national Boating
Infrastructure Grant Program (BIG). We
published a proposed rule in the
Federal Register on March 28, 2012. We
received responses from the public
during the 60-day comment period with
recommendations for changes, support
for certain parts of the proposed rule,
and requests for more time to review the
proposed rule. We published a second
proposed rule in the Federal Register on
April 25, 2014, with a 90-day comment
period. The final rule simplifies and
clarifies some sections, responds to
comments on both proposed rules, and
considers other approaches to carrying
out this grant program.
DATES: The final rule is effective on June
5, 2015.
FOR FURTHER INFORMATION CONTACT: Lisa
E. Van Alstyne, Wildlife and Sport Fish
Restoration Program, Division of Policy
and Programs, U.S. Fish and Wildlife
Service, 703–358–1942.
SUPPLEMENTARY INFORMATION:
SUMMARY:
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Executive Summary
The Sportfishing and Boating Safety
Act of 1998 established the Boating
Infrastructure Grant Program (BIG). The
Fish and Wildlife Service carries out the
program through regulations published
at 50 CFR part 86. The regulations
establish a process for States, the
District of Columbia, Commonwealths,
and territories (States) to receive grants
by proposing projects to construct and
maintain facilities for transient
recreational vessels at least 26 feet long.
There are two subprograms in BIG. BIG
Tier 1—State competes on the State
level for eligible projects, and BIG Tier
2—National competes on a national
level for eligible projects. Examples of
eligible costs are floating docks, piers,
navigational aids, boat slips, limited
dredging, and restrooms.
BIG receives its funding from 2
percent of the annual appropriation
from the Sport Fish Restoration and
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Boating Trust Fund. The Trust Fund
receives revenue from: (a) Taxes on
sport fishing equipment, electric
outboard motors, and sonar devices; (b)
taxes on special motorboat fuels and
gasoline attributable to motorboats and
nonbusiness use of small power
equipment; and (c) import duties on
fishing tackle, yachts, and pleasure
craft. In FY 2015, the Service awarded
over $14.3 million to States for eligible
projects.
This BIG final rule is the first
comprehensive update since 2001. In
developing this rule, we considered the
recommendations of the 2005 review of
BIG published by the Sport Fishing and
Boating Partnership Council, a Service
Federal Advisory Committee. We
actively worked with the Council and
our other partners, such as the States
Organization for Boating Access,
BoatUS, States, and the boating public.
Background
This final rule revises title 50, part 86
of the Code of Federal Regulations
(CFR), which is ‘‘Boating Infrastructure
Grant (BIG) Program.’’ The primary
users of these regulations are agencies in
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.
These regulations tell States how they
may apply for and use funds from the
Sport Fish Restoration and Boating
Trust Fund that are dedicated by law to
BIG (Dingell-Johnson Sport Fish
Restoration Act, 16 U.S.C. 777c, g, and
g–1).
The Catalog of Federal Domestic
Assistance at https://www.cfda.gov
describes BIG under 15.622. BIG offers
grants in two subprograms, BIG Tier 1—
State and BIG Tier 2—National, to
construct, renovate, and maintain
boating infrastructure facilities for
transient recreational vessels at least 26
feet long.
We published a proposed rule for BIG
in the Federal Register on March 28,
2012 (77 FR 18767), with a 60-day
comment period ending May 29, 2012.
We received 22 responses from the
public. Fifteen included comments
applicable to the proposed rule and 11
included requests for more time to
review the proposed rule. We responded
to comments and published a second
proposed rule in the Federal Register on
April 25, 2014 (79 FR 23210), with a 90day comment period ending July 24,
2014.
We received 13 responses to the
proposed rule published at 79 FR 23210.
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Some of the comments we received
support our changes or approaches and
others recommend further changes or
considerations. A few comments
requested more information or
explanation.
We address these comments in the
following section.
Response to Public Comments
We arrange the public comments by
sections of the proposed rule. We do not
duplicate a response we give in one
section in another section. We do not
present comments exactly as stated
unless we enclose text within quotation
marks. In many instances, we combine
several similar comments and show as
a single comment. We state in the
response to each comment any action
taken and explain our response. Some
public comments led us to reexamine
sections or approaches beyond the
specific public comment. Based on this
reexamination, we make changes to
improve clarity, consistency,
organization, or comprehensiveness.
We make some changes for
clarification and uniformity that we do
not specifically discuss. We do not
explain minor changes that do not
significantly affect content. We discuss
any substantive changes that resulted
from this reexamination in our
responses to the comments. We use the
word grantee in our responses to refer
to a State that receives a BIG award. It
may also apply to a subgrantee with
which a State agency has a formal
agreement to construct, operate, or
maintain a BIG-funded facility.
The regulations at 2 CFR part 200,
Uniform Administrative Requirements,
Cost Principles, and Audit
Requirements for Federal Awards (78
FR 78590, December 26, 2013), became
effective for Federal grants on December
26, 2014. Many citations within this
regulation have been updated to reflect
the current authority. The term grant
period is replaced with the term period
of performance at 2 CFR 200.77 and we
reflect that change in both the Response
to Public Comments and the body of the
rule.
We use the term proposed rule to refer
to the proposed rule published in the
Federal Register at 79 FR 23210, April
25, 2014.
We include all sections of the
proposed rule and indicate if we
received no comments.
Subpart A—General
Section 86.1
What does this part do?
In this section, we introduce the terms
BIG Standard and BIG Select to identify
the subprograms in BIG. We consider
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the terms Tier 1 and Tier 2 in the
current rule as bureaucratic and
nondescriptive of the BIG subprograms,
so we proposed different names. We
received many comments and some
suggestions for alternative subprogram
names. Most commenters stated that
since the program has been active for so
long, a major change would be
confusing to those routinely interacting
with the program. Some States noted
that they have developed materials that
use the current subprogram names and
they would have to recreate those
materials if we were to implement new
subprogram names. To compromise
between the commenters’ desire to keep
the familiar Tier designations and our
desire to make the names more
explanatory, we accept a combination of
suggested subprogram naming and
designate the subprograms as BIG Tier
1—State and BIG Tier 2—National.
Adding the terms State and National
reflects the level at which grants are
competed. Continued use of Tier 1 and
Tier 2 supports familiarity and allows
for States to use printed materials on
hand, changing to add the new
subprogram naming as is practical and
convenient for them.
Section 86.2 What is the purpose of
BIG?
We received one comment supporting
our statement of the purpose of BIG. The
commenter said that ‘‘the proposed
rules are consistent with that mission’’
and he commends the Service for
continuing to focus on such facilities.
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Section 86.3 What terms do I need to
know?
We received one comment supporting
our clarification of day dock use.
General
Comment 1: Clarify that the grant for
a BIG-funded facility includes both
Federal funds plus matching funds.
Response 1: We make no change
based on this comment. The definition
of grant includes this information.
Comment 2: Recommend adding
definitions for grantee and subgrantee to
help applicants understand their role in
the overall rule.
Response 2: We make no change
based on this comment. Section 86.1
distinguishes between a grantee and a
subgrantee.
Comment 3: Add the term subgrantee
and include a description of the wide
range of potential subgrantees to include
educational institutions.
Response 3: We make no change to
definitions based on this comment and
refer to Response 2. We do add
institutions of higher education to the
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list of potential subgrantees at
§ 86.17(b).
Comment 4: Add award to the terms
and define it as different from a grant.
Response 4: We make no change
based on this comment. We make minor
changes to the definition of grant to
better reflect the definition at 2 CFR
200.51. The term Federal award at 2
CFR 200.38 refers to several types of
financial assistance. To define award
may cause confusion.
Capital Improvement
Comment 5: Clarify what you mean by
repairing. Does capital improvement
include routine operation and
maintenance?
Response 5: We make no change
based on this comment. The word
repairing is a common term and is clear
in that it means to restore an existing
structure to serve an intended purpose.
Capital improvement does not include
operation or maintenance in that a
capital improvement must increase the
structure’s useful life by 10 years or cost
at least $25,000.
Comment 6: What is the basis for
using $25,000 as a cap in the definition
of capital improvement?
Response 6: We make no change
based on this comment. There is not a
$25,000 cap in the definition of capital
improvement. Rather, it is a minimum
threshold based on the amount in 49
CFR part 24 above which a grantee must
get an appraisal before acquiring real
property in a WSFR-administered
program. In the coming years, we will
change other regulations to reflect this
value.
Contractor/Concessioner
Comment 7: We received several
comments stating that the term
contractor was unclear and used
inconsistently with the typical
understanding of the term.
Response 7: We agree and change the
term to concessioner. We expanded on
the definition to clarify intent.
Facility
Comment 8: Recommend changing
the word boaters to eligible users.
Response 8: We make no change
based on this comment. The definition
of BIG-funded facility is specific to
eligible users, but the definition of
facility is broader and applies to all
boaters.
Comment 9: Clarify that a facility can
be owned by one entity, but leased longterm to another to operate and manage.
Response 9: We make no change
based on this comment. We discuss that
an entity other than the owner may
operate a facility in the definition of
concessioner and at § 86.17.
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Grants.gov
We received one comment asking us
to clarify to subgrantees that States must
apply for BIG funds through https://
www.grants.gov. Upon further
consideration, we add the definition of
grants.gov at § 86.3 to improve clarity in
the rule.
Maintenance
We received several comments
supporting our definition of
maintenance and making maintenance
an allowable action for BIG Tier 1—
State grants.
Comment 10: Suggest you give
clarification for janitorial activities in
the definition of maintenance.
Response 10: We make no change to
the definition, but clarify at § 86.16
actions we identify as janitorial.
Comment 11: The examples in the
definition of maintenance numbered (1)
Lubricating components of BIG-funded
equipment and (3) Painting, pressure
washing, and repointing masonry seem
to be janitorial in nature and not
maintenance.
Response 11: We make no change
based on this comment. The examples
given at (1) and (3) are maintenance
actions that are done on an occasional
or cyclical basis to help maintain the
equipment and structures that are part
of the BIG-funded facility.
To clarify our approach, maintenance
is focused on preserving the equipment
and structures for use into the future.
Operations are done on a daily or
weekly cycle (more often than cyclical
maintenance) and are actions that
support the availability of the
equipment and structures for current
public use.
Navigable Waters
Comment 12: Clarify in the definition
if the waterway is supposed to connect
to another waterway to give cruising
linkage, or if the intent is to open the
waterways definition to include large
water bodies that do not give linkage to
another waterway.
Response 12: We clarify the definition
to mean passage of eligible vessels
within the water body. To be navigable
water for the purposes of BIG, we do not
require the water body to have a
navigable passage to another water
body. However, the water body must be
large enough to support eligible vessel
travel within the water body.
Operation
Comment 13: What does service labor
mean?
Response 13: We change the term to
service worker. This means anyone
whose job duties are to offer services to
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the public. Some examples of service
workers are dock hands, rest room/
shower attendants, and travel assistants.
Personal Property
Comment 14: Suggest you give
examples of personal property that
would be eligible as match as described
at § 86.32(b). Are there any limits to the
types of personal property that would be
eligible as match? Allowing personal
property as match seems to be in
conflict with § 86.32(c)(2) that states
match must be an eligible activity or
cost, but personal property is not listed
as an eligible action at § 86.11.
Response 14: We make no change
based on this comment. We do not give
a list of examples of personal property
in the definition because the
possibilities are so extensive, it may be
perceived as limiting. Personal property
must meet the criteria for match at
§ 86.32 and must support the BIGfunded project and the eligible actions
or costs of the BIG-funded project.
Personal property is basically anything
that is not real property, and as real
property has very limited eligibility in
BIG, the majority of actions and costs for
a BIG-funded project will involve
personal property. Personal property in
a BIG-funded project may include
equipment, building materials, supplies,
and many other items.
supports that the dock is physically and
firmly attached to land.
Section 86.11
for funding?
Transient
We received several comments that
support eligible actions in the proposed
rule and one that specifically supports
using BIG funding for monitoring BIG
projects.
Comment 22: We received a comment
supporting our proposed language that
boat wash stations are ineligible for
funding and another requesting we
reconsider allowing boat wash stations
as eligible under BIG. One commenter
supports boat wash stations as an
eligible action, stating that they are used
in saltwater environments to prepare the
bottom surfaces of transient vessels for
boat repairs and to improve
performance.
Response 22: We make no change and
do not include boat wash stations as
eligible because:
• Boat wash stations require that
boats be removed from the water to
accomplish the desired results. This is
potentially an auxiliary service to
transient boaters on rare occasions, but
not a primary benefit for transient
vessels.
• We do not include other
equipment to repair and maintain
vessels as eligible for BIG funding.
States may seek to fund boat wash
stations under the Dingell-Johnson
Sport Fish Restoration Recreational
Boating Access subprogram as described
at 50 CFR part 80.
Comment 23: Add recording fees as
an eligible action as this will be
required when we record the Notice of
Federal Participation as described at
§ 86.18.
Response 23: We agree and make the
change.
Comment 24: Consider adding at
§ 86.11(a)(2)(i) cultural to formally
include those studies as eligible.
Response 24: We agree and make the
change.
Comment 25: Recommend adding at
§ 86.11(a)(5)(vi), a reference that directs
readers to the definition of marketing.
Response 25: We make no change
based on this comment. The rule has a
definition of public communication and
adding a reference to marketing in this
paragraph may be confusing.
Comment 26: In reference to
§ 86.11(a)(6) [(a)(7) in the final rule], can
actions such as coordinating and
monitoring be used as match for a BIG
Tier 2—National grant or is it allowed
only under BIG Tier 1—State grants?
Response 26: We make no change
based on this comment. These actions
may be offered as match when approved
as project costs for an individual BIG
Tier 2—National grant project and
We received a comment supporting
that in the proposed rule we clarify day
dock usage.
Comment 18: Recommend that the
definition of ‘‘transient’’ be increased to
30 days to allow increased flexibility for
long-distance travelers.
Response 18: We received comments
in prior reviews asking us to consider
increasing the time allowed in the
definition of transient. We reconsidered
all comments on the subject and change
the definition of transient to include a
stay up to 15 days. This will allow for
eligible boaters to arrange for a 2-week
stay, which is a more typical visit than
10 days, and gives one-day flexibility for
arrival and departure.
Comment 19: Clarify if an eligible
vessel staying at a large water body that
is not navigably connected to another
water body must be removed from the
water at the end of the transient period.
Response 19: We make no change
based on this comment. Transient
defines the period a recreational vessel
at least 26 feet long may stay at any
single BIG-funded facility to be an
eligible vessel. We make no additional
restrictions.
Useful Life
Program Income
Comment 16: Does the reference to
period of performance include useful
life?
Response 16: No. A period of
performance begins with the grant start
date and ends with the grant end date.
All costs for work performed are
incurred during the period of
performance. The period of useful life
extends past the period of performance.
We make no change based on this
comment.
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Project Cost
Comment 15: Recommend rewording
to state, ‘‘the Federal Share awarded
through the BIG Grant and all Match
given that the award is contingent upon
combining the two items to complete
the Project.’’
Response 15: We make no change
based on this comment. The definition
we give is clear and consistent with the
definition at other regulations.
Subpart B—Program Eligibility
Real Property
Comment 17: In the examples of real
property, suggest removing the term
fixed dock and replacing it with
permanent dock.
Response 17: We make no change
based on this comment. The word fixed
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Comment 20: Recommend replacing
routine care with operation in this
definition.
Response 20: We make no change
based on this comment. Routine care is
broader and includes operation, best
management practices, enforcing marina
rules and regulations, and other actions
that together add to the care of BIGfunded items.
Section 86.10
BIG grant?
Who may apply for a
Comment 21: The same commenter
suggested at several sections of this rule
that we change our grant process to
allow individual public and private
facility owners to circumvent the State
and directly apply for BIG grants. He
suggests that States may continue to be
advisors, but there is a large burden on
States when named as the applicant for
all BIG projects. The response below
applies to all related comments.
Response 21: We make no change
based on this comment. Limiting BIG
awards to States is based on the statute
that established the program (see Pub. L.
105–178, sec. 7404(a) and (d), June 9,
1998).
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completed during the period of
performance. These actions may be
associated with implementing a
Statewide BIG program and may be
offered as match under BIG Tier 1—
State.
Comment 27: What is the process for
requesting and receiving prior approval
for preaward costs? How far in advance
can preaward costs be approved?
Response 27: We make no change
based on this comment. We will
consider approving preaward costs only
if an applicant negotiates with us in
anticipation of the BIG award where
such costs are necessary for efficient
and timely performance of the scope of
work. Such costs are allowable only to
the extent that they would have been
allowable if incurred during the BIG
period of performance and only with
our written approval. The applicant
assumes all risk and we will not
reimburse the preaward costs if it does
not receive a BIG grant. An applicant
should discuss possible preaward costs
with us as early in the process as
possible.
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Section 86.12 What types of
construction and services does boating
infrastructure include?
Comment 28: Recommend adding
dredging.
Response 28: We make no change
based on this comment. Dredging is an
action and not infrastructure.
Comment 29: Recommend adding
floating restrooms as possible
infrastructure.
Response 29: Floating restrooms are
already included at § 86.12(e). We make
a minor clarifying change.
Comment 30: Why do you include
access to communication and provisions
in the definition of harbor of safe
refuge?
Response 30: We make no change
based on this comment. Our research
indicates that a harbor of safe refuge
includes these amenities that support
vessels during an emergency.
Comment 31: Suggest at § 86.12(e) you
refer to § 86.11(c) and encourage Clean
Vessel Act funding.
Response 31: We make no change
based on this comment. This section
describes what is included in boating
infrastructure. We would confuse
readers to include funding information
here.
Section 86.13 What operational and
design features must a facility have
where a BIG-funded facility is located?
We received a comment that supports
the change in the proposed rule that no
longer requires operators to inform
boaters of the location of other
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pumpouts. We also received a comment
supporting flexibility in water access.
Comment 32: Clarify how security
and safety is a required operational and
design feature, but law enforcement is
not an eligible action.
Response 32: We make no change
based on this comment. Law
enforcement is inconsistent with the
authorizing legislation (Pub. L. 105–178,
June 9, 1998) and is not an eligible
action. The type of security and safety
that a BIG-funded facility must offer is
consistent with the mission of BIG in
that it offers reasonable
accommodations that give eligible users
basic protection. Examples are: Lighting,
gates, and communication.
Comment 33: Move items at § 86.43(n)
to this section as it applies to operation
and design and not what to include in
a grant application.
Response 33: We agree and move
much of the information at § 86.43(n) to
§ 86.13(b)(1) through (4).
Comment 34: The reference to depth
requirements is confusing. Recommend
having docking or mooring sites with
water access at least 6 feet deep at mean
low tide in tidal waters or a minimum
of 6 feet in nontidal waters.
Response 34: We make no change
based on this comment. We are asking
applicants to consider the water
conditions at the proposed site of the
BIG-funded facility and any reasons for
potential depth fluctuation that could
affect access by eligible vessels. We do
not wish to limit this consideration to
tidal or nontidal influences, but to
consider natural influences and those
created by human activity.
Section 86.14 How can I receive BIG
funds for facility maintenance?
We received a comment supporting
the flexibility for States to use BIG Tier
1—State funding for maintenance. We
received a comment asking us to clarify
how to extend useful life when BIG
funds are used for maintenance at a
facility that has received a BIG grant in
the past. We clarify that a grantee must
extend the useful life of the capital
improvements affected by the
maintenance, as appropriate.
Section 86.15 How can dredging
qualify as an eligible action?
We received a comment supporting
our approach for dredging and dredgingrelated actions in BIG.
Comment 35: Suggest that the amount
of the total BIG grant the Service will
allow for dredging be increased from 10
percent to 20 percent.
Response 35: In the proposed rule we
allowed using BIG funds for dredging if
costs for dredging-related actions do not
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exceed 10 percent of total BIG project
costs or $200,000, whichever is less.
After further consideration, we remove
the 10 percent limit and will allow
dredging costs up to $200,000 for both
BIG Tier 1—State and BIG Tier 2—
National grants.
Comment 36: Change the term basin
to area used by eligible users.
Response 36: We make no change
based on this comment. The regulations
limit the amount of BIG funds available
for dredging and eliminate the need for
allocating funds to only eligible users.
Comment 37: Recommend changing
§ 86.15(b)(1) from lowest tide to mean
low water.
Response 37: We remove the term at
§ 86.15(b)(1) and substitute a reference
to § 86.13(a)(6) for the language that the
commenter finds confusing.
Comment 38: Recommend deleting
the requirement at § 86.15(d) as it is
unnecessary and will likely require a
new form.
Response 38: We make no change
based on this comment. We include this
paragraph in response to concerns from
prior and current comment periods for
a method or directive to ensure that
grantees maintain a dredged area. A new
form will not be necessary. When a
State signs the Standard Form 424B or
424D it certifies that it will follow all
regulations.
Comment 39: Recommend adding
language at § 86.15(d) to allow
flexibility for responding to unusual
circumstances that affect water level.
Response 39: We add ‘‘under typical
conditions’’ to indicate that we will
consider flexibility under extraordinary
factors that affect water level.
Comment 40: Is dredging eligible only
at a facility that has received BIG funds
in the past?
Response 40: No. Dredging is an
eligible action. As with all other eligible
actions, there is no requirement to have
received a prior grant. We make no
change based on this comment.
Section 86.16 What actions are
ineligible for BIG funding?
We received comments that agree
with the concepts in this section,
specifically that we list land as an
ineligible cost.
Comment 41: Clarify the difference
between:
• The ineligible action at
§ 86.16(a)(8)(ii) General marina or
agency newsletters or Web sites
promoting the marina or agency; and
• The eligible action at
§ 86.11(a)(5)(iv) Marina newsletter
articles, marina or agency Web pages,
and other communications you produce
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that are directly related to the BIGfunded project.
Response 41: We make no change
based on this comment. The difference
is that the eligible action at
§ 86.11(a)(5)(iv) is specific to and
directly supports the BIG-funded
project. The ineligible action at
§ 86.16(a)(8)(ii) is general in nature and
focused primarily on the marina or
agency apart from the BIG project or
program. If a marina or agency includes
specific BIG-funded project or BIG
program information in any general
agency communications, it may allocate
the information and education costs
accordingly.
Comment 42: Suggest you revise
§ 86.16(a)(5) to clarify that roads and
parking lots and possibly other land
surface improvements may be funded
with BIG if there is damage to the
surface as a result of completing the BIG
project.
Response 42: We clarify at
§ 86.11(a)(1) that repairing or restoring
roads, parking lots, walkways, and other
surface areas damaged as a direct result
of BIG-funded construction is an eligible
action. This must be limited only to the
surface that receives the damage and a
reasonable surrounding distance needed
to insure the public can safely travel on
the surface.
Comment 43: Remove the word
facilities at § 86.16(a)(6) as it may create
confusion when interpreting definitions
at § 86.3.
Response 43: We agree and make the
change.
Comment 44: Clarify the differences
between maintenance and janitorial
duties at §§ 86.3 and 86.16.
Response 44: We make no change at
§ 86.3 based on this comment. We
clarify § 86.16(a)(2) by giving examples
of possible janitorial duties.
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Section 86.17 Who must own the site
of a BIG-funded facility?
Comment 45: What documentation
would a grantee need from a subgrantee
that does not own the site of a BIGfunded facility to show it follows
§ 86.17(a)?
Response 45: We make no change
based on this comment. We state in
§ 86.17(a) that any entity that does not
own the site of a BIG-funded project
must have a contractual arrangement
showing that it, or the owner, will
operate the BIG-funded facility for the
useful life. The contractual arrangement
must convey grant responsibilities to a
subgrantee or operator and it must be
acceptable to the State. The
documentation will become part of the
application when we award the grant. If
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the owner signs the grant, there is no
need for additional documentation.
Comment 46: Clarify that State
agencies other than the agency receiving
the grant may be subgrantees.
Response 46: We agree and change the
section to clarify this.
Comment 47: May Federal agencies,
corporations, companies, and
partnerships qualify as subgrantees?
Response 47: We make no change
based on this comment. Corporations,
companies, and partnerships that we
will accept as subgrantees are either
commercial enterprises or nonprofit
organizations and are already listed as
eligible subgrantees. A Federal agency
may participate as a landowner that has
a contractual relationship with a State
subgrantee or through a reimbursable
agreement. However, a Federal agency
cannot be a subgrantee.
Comment 48: Remove the requirement
that subgrantees that are commercial
enterprises are subject to future
regulations.
Response 48: We agree and removed
§ 86.17(c)(2) because we are uncertain
how future regulations will be applied.
We retain information at § 86.17(c)(1) as
§ 86.17(c) to remind grantees and
subgrantees that businesses have other
Federal requirements they must follow.
Section 86.18 How can I ensure that a
BIG-funded facility continues to serve
its intended purpose for its useful life?
We received comments that support
this section.
Comment 49: What does the word
‘‘record’’ mean at § 86.18(b)?
Response 49: We make no change
based on this comment. Recording
means entering into a book of public
records the written instruments
affecting the grant interest in the real
property it is located on. Recording with
reference to the deed notifies all
interested parties of the grantee’s
continuing responsibility to manage the
BIG-funded facility for the purposes of
the grant.
Comment 50: When would we know
if a Notice of Federal Participation is
required?
Response 50: We make no change
based on this comment. A grantee must
record a Notice of Federal Participation
for all projects according to guidance
from your Regional Office. We may, in
consultation with a State, conclude that
the project is too small to justify the cost
of recording. If we approve that
approach, the grantee is not required to
record the interest for that project. Even
if we tell the grantee we do not require
them to record the interest, a State may
choose to record it, or require its
subgrantee to record it.
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Comment 51: You should not require
recording of the Federal interest after
applications are received. Adding these
requirements later can jeopardize
partner relationships.
Response 51: We make no change
based on this comment. We clarify this
section based on other comments. It is
the State’s responsibility to direct
potential subgrantees to these
regulations or otherwise alert them to
this and other potential obligations,
compliance requirements, and future
responsibilities.
Section 86.19 What if a BIG-funded
facility would benefit both eligible and
ineligible users?
We received comments supporting the
changes that allow us to work with a
grantee to correctly allocate costs after
the application is received, but before
we consider the application for award.
We remove § 86.19(b) as it restates
information in the opening paragraph.
We renumber §§ 86.19(c) through (h) as
§§ 86.19(b) through (g).
Comment 52: Remove assigning ‘‘100
percent’’ of the project costs as it is
confusing.
Response 52: We define ‘‘project cost’’
at § 86.3 as the combination of the
Federal share and the matching share.
However, in the interest of clarity we
rephrase to state ‘‘all eligible project
costs’’ instead of ‘‘100 percent.’’
Comment 53: Change § 86.19(c) [now
§ 86.19(b)] so that applicants must
properly allocate funds before the due
date. The breakdown on allocated costs
must be shown at the time of the
application and not when the Director
announces the award. Applications for
BIG Tier 2—National grants cannot be
reviewed and ranked without
appropriate information.
Response 53: We make changes to
clarify this paragraph. We expect that
applicants will read both the regulations
and the Notice of Funding Opportunity
(NOFO) and make good faith efforts to
appropriately allocate funds in their
applications. However, we do not wish
to reject an application simply for an
error or misinterpretation in allocating
funds. We include this paragraph so that
we have the flexibility to work with the
applicant before the award to resolve
any problems. Paragraph (a) of this
section clearly states that we expect an
applicant to show and explain in the
application the breakdown of costs and
reasoning behind the cost allocation. We
change paragraph (c) to clarify that after
the application due date, we may work
with applicants to resolve any issues.
However, we must approve how an
applicant allocates funds before we will
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consider the application for a possible
award.
Comment 54: Recommend you refer to
§ 86.43(i) at § 86.19(a)(2) of this section
to link the two sections.
Response 54: We agree and insert the
reference.
Comment 55: The example at
§ 86.19(d)(1) [now § 86.19(c)(1)] should
have costs allocated between eligible
and ineligible uses. Marinas may
intentionally design or relocate uses to
take advantage of BIG funding and also
get a secondary benefit.
Response 55: We make no change
based on this comment. An application
must clearly state the primary purpose
of the project and justify the approach.
If BIG-eligible projects have a secondary
use that does not interfere with the
primary purpose, there is no loss to the
program objectives.
Comment 56: The exception at
§ 86.19(d)(3) [now § 86.19(c)(3)] could
be problematic. For example, a gangway
with an estimated cost of $4,500 does
not have to allocate funds between
eligible and ineligible uses. What
happens if the gangway goes to bid and
comes in costing $10,000? The first
expectation was that the BIG grant
would cover 100 percent of the costs; in
the second, the BIG grant covers only 90
percent of the costs, leaving $1,000 for
the applicant to give as additional
match. On top of that, would the
$10,000 have to be allocated between
eligible and ineligible uses after the
fact?
Response 56: We make no change
based on this comment. We include this
section to reduce the burden of
allocating costs for components of the
BIG-funded project that have relatively
little value. Section 86.19(d)(3) [now
§ 86.19(c)(3)] states that each year we
will post the minimal value in the
annual NOFO based on the formula as
applied to the maximum award we offer
that year. If the maximum award
(Federal plus match) is $2 million,
applying the formula will allow States
to forego allocating costs for a
component with a value of $5,000 or
less.
In the scenario given in the comment,
the total estimate for the gangway is
$4,500, which means the grantee will
receive $3,375 in BIG funding and give
$1,125 in non-Federal match. After the
grant is awarded, if the actual cost of an
item is $5,500 more than originally
projected, the grantee must pay the extra
cost from a non-Federal source. If an
applicant does not allocate costs for an
item because the estimated value is
below the threshold and later finds the
actual cost exceeds that value, it must
contact the Regional Office. The
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Regional Office will inform the
applicant or grantee if it must assume
additional costs to compensate for
ineligible use. Regardless of whether an
applicant chooses the option at
§ 86.19(c)(3), if the cost of a component
is more than twice the original estimate,
the grantee will incur additional,
unexpected costs.
It is always an option for the
applicant to choose to allocate costs for
all components of the grant, regardless
of the value. We offer the option at
§ 86.19(c)(3) as an alternative, but
applicants do not have to use it.
Subpart C—Federal Funds and Match
We received a comment supporting
all amendments and additions to this
subpart.
Section 86.30 What is the source of
BIG funds?
No comments received.
Section 86.31 How does the Service
know how much money will be
available for BIG grants each year?
No comments received.
Section 86.32 What are the match
requirements?
Comment 57: Recommend you change
the word ‘‘State’’ at § 86.32(a) to ‘‘you’’
to reflect the convention stated at
§ 86.1(b).
Response 57: We agree and make the
change.
Section 86.33 What information must I
give on match commitments, and where
do I give it?
We received comments supporting the
changes and specifically for removing
the requirement for all match providers
to produce a letter of commitment.
Section 86.34 What if a partner is not
willing or able to follow through on a
match commitment?
We received a comment supporting
this section.
Subpart D—Application for a Grant
Section 86.40 What are the differences
between BIG Standard (now BIG Tier
1—State) and BIG Select (now BIG Tier
2—National) grants?
Comment 58: We received several
comments supporting the flexibility to
increase annual BIG Tier 1—State
funding. We also received comments
that stated their support is contingent
on adequate funds for BIG Tier 2—
National projects.
Response 58: We agree that flexibility
for larger funding amounts through Tier
1—State grants will allow States to plan
smaller projects that could not
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successfully compete for Tier 2—
National funds, but are beneficial to
eligible users. We revised this section to
assure States they will receive funding
for requests up to $200,000 annually.
We also add that we may increase the
annual award a State may request if
there are enough funds available and it
is advantageous to the program. This
will allow us to be flexible in awarding
funding during the award period and
potentially during the funding year, if
we determine it is in the best interest of
BIG.
Comment 59: Recommend that
flexibility for awarding BIG Tier 1—
State be considered only if BIG Tier 2—
National applications do not exceed
available funds in a given fiscal year.
The BIG Tier 1—State NOFO should be
posted after BIG Tier 2—National
applications are received and after
consulting with stakeholders.
Response 59: We make no change
based on this comment. We adjust this
section as discussed in Response 58, but
the availability of BIG Tier 1—State
funds will not depend on how much
remains after the BIG Tier 2—National
selections are made. We want to assure
States they will have adequate BIG
funding to maintain a viable program
and to plan for needed actions.
However, we will retain the flexibility
to limit initial BIG Tier 1—State awards
to $200,000 and have the flexibility to
consider adding requested BIG funds
above this threshold later during the
funding year if additional funds are
available.
Comment 60: If you are considering
more than a 20 percent increase in the
minimum funding for BIG Tier 1—State,
you should first seek stakeholder input.
Response 60: We make no change
based on this comment. However, we
will consider consulting with our
partners on possible approaches for
implementing future annual changes.
Section 86.41 How do I apply for a
grant?
Comment 61: You should inform
subgrantees in the regulations that the
State will send in their applications
through https://www.grants.gov.
Response 61: We add the definition of
grants.gov at § 86.3 and state that we
require States to use https://
www.grants.gov to apply for BIG grants.
Comment 62: Clarify at § 86.41(b) that
the term ‘‘certify’’ means to sign.
Response 62: We make no change
based on this comment. Certifying by an
authorized State representative may be
done electronically or by other means in
the future. We will inform applicants of
acceptable ways to certify in the annual
NOFO.
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Comment 63: Clarify that the agency
eligible to apply for a BIG grant must be
the one designated by the Governor and
not a specific State agency.
Response 63: We make no change
based on this comment. It is clear at
§ 86.10 that only one agency in each
State may apply for BIG and the officials
who may designate that agency in your
State.
Comment 64: Switch § 86.41(b) and
(c) to reflect that the form must be
certified before submitting the grant
application.
Response 64: We agree and make the
recommended change.
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Section 86.42 What do I have to
include in a grant application?
Comment 65: Remove ‘‘budget
information’’ from the list of items
required in a grant application as it is
already required at § 86.43 under project
statement.
Response 65: We agree and removed
budget information from the list of
required items. We also clarify by
adding a reference to § 86.43 in this
paragraph.
Comment 66: Delete paragraph (c) as
it refers to what is needed after the
award. Recommend adding this to
§ 86.61.
Response 66: We agree and clarify this
section to reflect what an applicant
must include at the time of application.
We refer to § 86.61 for additional
requirements that will become part of
the application after we approve the
project.
Section 86.43 What information must I
put in the project statement?
Comment 67: This section is
burdensome for applicants, some with
minimal grant experience, and requires
unnecessary information. Recommend
clarifying or changing to indicate
additional information would be
required once the project is selected for
funding.
Response 67: We make no change
based on this comment. The commenter
did not state what parts of this section
are burdensome. The State is the
applicant and should work with
potential subgrantees to develop the
project statement. The information
required in the project statement is
standard for most grant programs. It is
also necessary to determine allowability
of costs and to rank applications in a
competitive grant program.
Comment 68: The requirement to add
names and qualifications of known
contractors is burdensome at the
application stage.
Response 68: We change the term
contractor to concessioner at
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§ 86.43(e)(2). We ask an applicant to
give information in an application on
known or anticipated concessioners or
subgrantees. If an applicant has not
identified concessioners or subgrantees
in the application, it must inform us of
this and be ready to respond to our
requests for this additional information
following § 86.42(c).
Comment 69: Combine this section
with the criteria at §§ 86.51 through
86.60 to simplify preparing and
reviewing applications.
Response 69: We make no change
based on this comment. The project
statement is required for both BIG Tier
1—State and BIG Tier 2—National
applications. The criteria at §§ 86.51
through 86.60 are applied only to BIG
Tier 2—National applications. It would
be confusing to those applying for a BIG
Tier 1—State grant to include criteria
with the project statement. We will
consider giving nonregulatory assistance
to BIG Tier 2—National applicants to
help them include criteria in their
project statements.
Comment 70: This section appears to
be solely for the purpose of aligning
with WSFR’s project reporting system,
Wildlife Tracking and Reporting
Actions for the Conservation of Species
(TRACS). Clarify the content and reduce
redundancy.
Response 70: We make no change
based on this comment. A project
statement (called a program narrative
statement) was required by Office of
Management and Budget (OMB)
Circular No. A–102 and is supported by
2 CFR part 200, § 200.210 and appendix
I to part 200. We give further details in
this rule to help applicants give us the
information we need to make informed
decisions for funding. We use many
terms that correlate to the TRACS
performance reporting system to reduce
confusion when completing those
reports.
Comment 71: One commenter
suggested alternative language for this
section.
Response 71: We do not make any
suggested change that applies only to
BIG Tier 2—National, or that is a
minimal change that does not
significantly improve the final rule. We
appreciate the examples and additional
information the commenter presents
and will consider them for future
nonregulatory guidance. We did not use
the word ‘‘engineering’’ in discussing
the approach because we do not want to
confuse applicants into thinking it is a
requirement to employ an engineer. We
used some of the suggestions to reformat
the paragraph at § 86.43(i) and to clarify
or further explain at paragraphs (b), (c),
(e), (g)(3), (i), and (j).
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Comment 72: Combine purpose and
objective.
Response 72: We make no change
based on this comment. Purpose and
objective are two separate and distinct
parts of a project statement. The
purpose refers to the reason for the
project and will include verbs such as
create, improve, and increase.
Objectives are brief guidelines that will
help a grantee achieve project goals by
stating more specifically the intended
outputs, such as: The number of slips
for transient boaters, the linear feet of
new dock space, the time needed to
complete that goal, and any information
that describes that the goal is attainable
and relevant.
Comment 73: You should give
examples of measurable and verifiable
objectives.
Response 73: We make no change
based on this comment. We will
consider offering further guidance
outside of regulation.
Comment 74: It may be difficult for
applicants to state a useful life for a
capital improvement at the application
stage.
Response 74: We make changes to
clarify approach and expectations. At
§ 86.43(f), we change ‘‘state’’ to
‘‘estimate’’ and add a sentence that a
grantee will finalize useful life during
the approval process. This change
informs an applicant that it must
include information on useful life in the
application, but it will be reviewed and
may be changed, if necessary, when it
receives an award. We also make
clarifying changes at § 86.75, which is
§ 86.74 in this final rule.
An applicant may seek guidance from
technical literature and from vendors,
engineers, and others knowledgeable
individuals to estimate the useful life of
each capital improvement. We will
reject an application that does not have
the required estimates for useful life.
Once a project is approved for an award,
the Service may confer with the grantee
on the estimate given in the application.
A grantee must finalize the useful life
before the award.
If an applicant is seeking points for
the criterion at § 86.51(c)(2) as described
at § 86.59(b)(2), it must give adequate
information in the application to
support the request for consideration
under the criterion. If we find before we
approve the grant that an applicant
cannot show a reasonably expected
increased benefit to earn the extra
point(s), we will subtract the point(s)
related to that criterion from the total
score for that project and adjust awards
accordingly.
Comment 75: No minimum useful life
is identified. The current rule states
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useful life is 20 years. Does this mean
applicants can decide another period for
useful life?
Response 75: We explained in the
preamble of the proposed rule
published at 77 FR 18767 on March 28,
2012, that we propose to eliminate the
20-year requirement and replace it with
a useful life requirement based on
capital improvements. The useful life
determination described at §§ 86.73 and
86.74 will help grantees to better
understand their responsibilities.
Section 86.44 What if I need more than
the maximum Federal share and
required match to complete my BIGfunded project?
We revise this section in response to
a comment that asked us to reference
this section at § 86.73. Upon further
consideration, we concluded the two
sections contain almost identical
content, so we combine all the
information at § 86.44.
Comment 76: Add an option to this
section that will allow grantees to
reduce the scope of their project if they
find that actual costs greatly exceed
projected costs.
Response 76: We make no change
based on this comment. In BIG Tier 2National project review and ranking, the
scope is a major factor that influences
the amount of points that a project
receives. If the scope were reduced, it
could impact the score and ranked
order. It is important that applicants are
thorough when preparing their
application and consider all factors that
could influence costs during the period
of performance.
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Section 86.45 If the Service does not
select my grant application for funding,
can I apply for the same project the
following year?
No comments received.
Section 86.46 What changes can I
make in a grant application after I
submit it?
Comment 77: Clarify and give
examples for changes after the due date
as found at paragraph (b). If part of an
application is found to be ineligible,
will you allow applicants to change the
scope, budget, etc., and continue the
review and ranking?
Response 77: We clarify and reformat
paragraph (b) to state that if an applicant
proposes using BIG funds for an action
that we identify as ineligible, we will
decide on a case-by-case basis whether
we will consider the rest of the
application for funding. We do not give
examples in the regulation as there are
many possible scenarios and to give any
examples may make the regulation more
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confusing. We may seek advice from the
applicant or members of the advisory
panel, but we will make the final
decision. If we decide to accept the
application with the ineligible costs
removed, we will ask the applicant to
change the application accordingly.
Comment 78: Delete paragraph (f) on
accepting reduced funding as this does
not foster the competitive aspect of the
program unless offered to all nonfunded applicants.
Response 78: We make changes in this
paragraph to clarify this issue. We
review and rank all competitive grant
applications according to the BIG
criteria, arrange them in ranked order,
and award available funds to projects,
starting with those ranked the highest.
The amount of available funds and the
amount of funding requests never
match. Paragraph (f) describes the
approach we may use when funding is
still available, but the next ranked
project cannot be funded at the level
requested. We may approach the
applicant for the next highest ranked
project to offer the remaining funds. If
the applicant declines, we may continue
the process to maximize BIG Tier
2—National funding.
Subpart E—Project Selection
We received a comment supporting
all amendments and additions to this
subpart.
Section 86.50 Who ranks BIG Tier 2—
National grant applications?
No comments received.
Section 86.51 What criteria does the
Service use to evaluate BIG Tier 2—
National applications?
Comment 79: Suggest a project
achieve a score of at least 65 percent of
the total available in order to be
considered for funding. A project that
receives below this score is clearly not
competitive and should not be
considered, even if there is funding
available.
Response 79: We agree with the
approach to set a minimum standard for
funding BIG Tier 2—National
applications as an incentive for
developing more competitive projects.
As we did not discuss this in the
proposed rule, we change this section to
allow us to set a scoring standard in the
NOFO. We will use feedback from
States, advisors, and others to assess if
we wish to set a minimum total score
standard. We may announce in the
NOFO a minimum total score of 23,
which is 65 percent of the maximum
total score available in criterion at
paragraphs (a) and (b).
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Comment 80: Consider awarding
points for projects in federally
designated disaster areas so we can
leverage BIG funds to aid in the
recovery.
Response 80: We make no change
based on this comment. We score
competitive applications based on need
as described at § 86.52. We will consider
all factors in an application that address
the need for the project, including those
factors as they may relate to disaster
response and rebuilding.
Comment 81: We received two
comments recommending we adjust the
points in the ranking criteria to create a
possible total of 100. One of these
comments includes removing
§ 86.51(c)(2) and (c)(3). One commenter
included a table that showed these
changes and added designations from
§ 86.43 that correspond to the criteria.
Response 81: We do not accept the
suggestions for revising scoring and
removing two paragraphs at § 86.51(c).
Many comments we received in
response to the proposed rule published
at 77 FR 18767, March 28, 2012, stated
they want a point range for scoring each
criterion, but that a wide range is not
effective. In response, we reduced the
point range for scoring in the proposed
rule published April 25, 2014. We
received comments supporting
§§ 86.51(c)(2) and (c)(3) and we will
retain those sections.
The criterion at § 86.51(c)(2) is
important because it encourages
applicants to consider the future, plan
for projects that extend the availability
of the BIG-funded facility, and improve
services to eligible users. This criterion
also addresses the desire for grantees to
build projects using design and
processes that improve resiliency to the
effects of climate change. Many States
asked us to include the criterion at
§ 86.51(c)(3) to recognize the value of
those operators who voluntarily
participate in Clean Marina and other
similar programs. We agree and
recognize the benefit to eligible users.
We agree that information to help
applicants relate criteria to the project
statement is desirable, but not through
this regulation. We will work with our
partners to develop and distribute
further guidance to help applicants.
Comment 82: The criterion at
§ 86.51(a)(2) does not address
justification for the cost of the project.
Instead, it focuses on comparing costs
with benefits as a means of comparing
one application to another. Recommend
changing the question to be more about
how costs compare to benefits rather
than if the costs are justified by the
benefits.
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Response 82: We do not make a
change at § 86.51(a)(2), but we agree that
the explanation for this criterion at
§ 86.53 could be interpreted that we
would compare an application to others
in the same grant cycle. We change
§ 86.53 to state we will consider the
costs as they relate to the benefits for
individual projects and not as projects
compare to each other in the same grant
cycle. We also add guidance at
paragraph § 86.53(d) recommending that
an applicant inform us if project costs
are inflated due to: (a) Specialized
materials to increase the useful life, (b)
the cost of transporting materials to a
remote location, (c) unusual costs
associated with producing benefits at a
certain site or in a certain geographic
area, or (d) the cost of providing
environmentally friendly facilities.
Comment 83: Recommend replacing
in-kind with substantial because in-kind
is just another type of match and it
should not matter what type of match it
is.
Response 83: We make no change
based on this comment. We received
many comments on this subject while
preparing for this rulemaking. We
responded to recommendations to allow
us to consider the nonmonetary
contributions of partners as well as the
monetary contributions. The purpose of
the criterion at § 86.51(b)(2) is to allow
for partnerships in smaller communities
to rank well even if they do not result
in large financial contributions. The
word substantial is subjective and could
result in negating the spirit of giving
credit for smaller contributors.
tkelley on DSK3SPTVN1PROD with RULES2
Section 86.52 What does the Service
consider when evaluating a project on
the need for more or improved boating
infrastructure?
When evaluating a project on the need
for more or improved boating
infrastructure facilities as described at
§ 86.52(c), we will consider creating
accessibility for eligible vessels by
increasing water depth. We received a
comment supporting this factor.
Section 86.53 What factors does the
Service consider for benefits to eligible
users that justify the cost?
We make changes to this section
based on comments received under
§ 86.51. See Response 82.
Comment 84: Construction costs can
vary widely across the country for
reasons such as meeting hurricane
standards, installing bubbler systems
where ice is a factor, and adding
transportation costs for remote
locations. Recommend applicants be
told to explain why higher costs may be
justified.
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Response 84: We agree and make
changes as discussed in Response 82.
Comment 85: Recommend adding
consideration for costs associated with
making the project a harbor of safe
refuge.
Response 85: We agree and add
paragraph (e) to tell applicants to
include this information.
Section 86.54 What does the Service
consider when evaluating a project on
boater access to significant destinations
and services that support transient
boater travel?
We received a comment supporting
the focus on both attractions and boater
services in the ranking criterion at
§ 86.51(a)(3).
Comment 86: Recommend including
proximity to a harbor of safe refuge
under this criterion.
Response 86: We agree and add at
paragraph (c) that we will consider
safety as well as services.
Section 86.55 What does the Service
consider as a partner for the purposes of
these ranking criteria?
No comments received.
Section 86.56 What does the Service
consider when evaluating a project that
includes more than the minimum
match?
Comment 87: Recommend deleting
the word cash at paragraph (a) because
it precludes additional points for inkind contributions.
Response 87: We make no change
based on this comment. In-kind
contributions are discussed at § 86.57.
Comment 88: We received two
comments recommending a different
standard for awarding points based on
percentage of additional cash match.
Both recommendations were based on
increasing the total points at § 86.51 that
may be considered for this criterion for
a maximum of 25 points.
Response 88: We did not accept the
recommended changes at this section as
we did not accept the related
recommended changes in Comment 81.
However, upon further review we
change the percent ranges to encourage
applicants to offer more match to their
project.
Section 86.57 What does the Service
consider when evaluating contributions
that a partner brings to a project?
No comments received.
Section 86.58 What does the Service
consider when evaluating a project for
a physical component, technology, or
technique that will improve eligible
user access?
No comments received.
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Section 86.59 What does the Service
consider when evaluating a project for
innovative physical components,
technology, or techniques that improve
the BIG project?
Comment 89: We consider
§ 86.59(b)(4) and (5) to be unneeded and
a potential obstacle to participation.
These two requirements are typically
considered during project design and
would be enforced during the
permitting process.
Response 89: We make no change
based on this comment. This section is
not a requirement, and there is no
reason for it to be an obstacle to
participation. This section allows us to
consider additional points for
innovative physical components,
technology, or techniques that improve
the BIG project. The items at
§ 86.59(b)(4) and (5) are examples of
how an applicant could qualify for these
additional points by exceeding the
compliance requirements. If an
applicant is required to use a physical
component, technology, or technique to
comply with local, State, or Federal
regulations, then we do not consider
additional points under this criterion.
This section is for applicants who
voluntarily choose an innovative
approach that increases the resilience of
project components or otherwise
improves the project.
Section 86.60 What does the Service
consider when evaluating a project for
demonstrating a commitment to
environmental compliance,
sustainability, and stewardship?
We received a comment that supports
the additional point we offer for marinas
that have received official recognition
for their voluntary commitment to
exceeding required standards.
Section 86.61 What happens after the
Director approves projects for funding?
No comments received. We delete
§ 86.42(c) and refer to this section.
Subpart F—Grant Administration
Section 86.70 What standards must I
follow when constructing a BIG-funded
facility?
No comments received.
Section 86.71 How much time do I
have to complete the work funded by a
BIG grant?
We received several comments
supporting the length of the period of
performance and the amendment to
allow a first extension for up to 2 years.
The commenters state that the length of
the period of performance is important
to ensure project completion.
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Comment 90: Clarify that we could
have almost 6 years to complete a
project if we combine the 3-year period
of performance with the 3-year period of
obligation.
Response 90: There is potential that
combining the obligation period with
the period of performance could result
in 6 years from the beginning of the
fiscal year the project is awarded to the
end of the period of performance.
However, this may not always be true.
A grantee may coordinate with us after
we award a grant to set a start date for
the period of performance within the
obligation period. We add that we will
work with a grantee to set a start date
within the 3-year period of obligation.
Section 86.72 What if I cannot
complete the project during the period
of performance?
No comments received.
Section 86.73 What if I need more
funds to finish a project?
Comment 91: Recommend adding a
reference in this section to § 86.44 as the
two sections are related.
Response 91: We agree, and upon
further review we consider most of
§ 86.73 and § 86.44 to be redundant. We
revise § 86.44 to include additional
information from § 86.73 and delete the
content of § 86.73. We renumber
§§ 86.74 through 86.79 as §§ 86.73
through 86.78.
tkelley on DSK3SPTVN1PROD with RULES2
Section 86.74 [now § 86.73] How long
must I operate and maintain a BIGfunded facility, and who is responsible
for the cost of facility operation and
maintenance?
Comment 92: Recommend the owner
of the BIG-funded facility be responsible
for continued operation and
maintenance and not the State.
Response 92: We make no change
based on this comment. A State may
enter into a contractual agreement with
the facility owner, subgrantee, or other
type of operator that designates them as
the responsible party for continued
operation and maintenance. However,
should they not fulfill their obligations,
the State as grantee is ultimately
responsible.
Section 86.75 [now § 86.74] How do I
determine the useful life of a BIGfunded facility?
Comment 93: We received two
comments recommending this section
be simplified to avoid confusion.
Response 93: We considered these
comments and clarify this section by
presenting it as a step-by-step process.
We emphasize that the initial
application must include a useful life
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estimate, but the estimate may be based
on information from resources that are
typically available when developing a
grant application. We also clearly allow
a State to choose only one of the
methods for finalizing useful life in the
grant and use that method exclusively
for BIG in that State.
Comment 94: Recommend changing
the language so that it is clear how to
apply the process. It is unclear how
components relate to the larger systems
and what would happen if a smaller
component is no longer useful, but
necessary for continued use of a larger
one. For example, if a gangway costs
less than $25,000 and it falls into
disrepair, can the operator remove and
not replace it, even if it is necessary to
access the dock system?
Response 94: We changed this section
to clarify at § 86.74(a)(1)(iv) and (v) that
each smaller component must be
associated with a capital improvement.
If it supports more than one, the smaller
component must be associated with the
capital improvement with the longest
expected useful life.
Section 86.76 [now § 86.75]
should I credit BIG?
How
How can I
No comments received.
Section 86.78 [now § 86.77]
I treat program income?
How must
We received a comment supporting
our approach to clarifying program
income.
Comment 95: Recommend you add
that we should tell you if project
construction is completed before the
end of the period of performance to
reduce the impact of income earned.
Response 95: We agree and add
paragraph (e) to recommend grantees
tell us when project construction is
completed.
Section 86.79 [now § 86.78] How must
I treat income earned after the period of
performance?
No comments received.
Subpart G—Facility Operations and
Maintenance
Section 86.90 How much must an
operator of a BIG-funded facility charge
for using the facility?
We received several comments
supporting the change to allow marinas
to offer services for free if that is the
prevailing rate.
Comment 96: What if a town or city
council mandates a high fee just to raise
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revenue? It seems unfair to make boaters
pay the higher fee.
Response 96: We agree and added
language at § 86.90(c) that we will
accept a State or locally imposed fee
schedule if it is reasonable and does not
impose an undue burden on eligible
users.
Comment 97: Clarify that when
determining prevailing rates that similar
facilities are being compared. It would
not be fair to compare the rates from a
private, member-only marina to a public
or private marina open to the public.
Another example of differing types of
facilities would be a public dock
connected to a city center compared to
a public dock connected to an island.
Response 97: We state at § 86.90(a)
that the facilities we consider when
determining prevailing rates must offer
similar services or amenities. We
respond to this comment by adding that
they are to be similarly situated as well.
Section 86.91 May an operator of a
BIG-funded facility increase or decrease
user fees during its useful life?
No comments received.
No comments received.
Section 86.77 [now § 86.76]
use the logo for BIG?
26159
Section 86.92 Must an operator of a
BIG-funded facility allow public access?
Comment 98: Change the word
‘‘operator’’ to ‘‘contractor’’ to match the
definitions.
Response 98: We make no change to
this section based on this comment. We
clarify by adding the term ‘‘operator’’ at
§ 86.3.
Section 86.93 May I prohibit overnight
use by eligible vessels at a BIG-funded
facility?
Comment 99: Clarify if we can change
to a day-use only facility after the
project is completed, but before it
reaches the end of its useful life. Would
we use the guidance at Subpart H to do
this?
Response 99: If a grantee wishes to
convert a Tier 1-State or a Tier 2National project from an overnight to a
day-use facility, it must contact the
Regional Office for guidance. A
subgrantee must contact their State,
which will in turn contact the Regional
Office. The change in usage will alter
the scope of the project, and deviation
from the original project scope may
constitute a breach of a grant agreement.
Grantees must receive our approval
before making any changes in the scope
of a project at any time during its useful
life. [See 2 CFR 200.201(b)(5) and
200.308(b)]
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Section 86.94 Must I give information
to eligible users and the public about
BIG-funded facilities?
We received several comments
supporting the change to allow using
signs and other forms of emerging
communication to inform eligible users
about the facility and eligible uses.
Subpart H—Revisions and Appeals
Section 86.100 Can I change the
information in a grant application after
I receive a grant?
No comments received.
Section 86.101 How do I ask for
revision of a grant?
No comments received.
Section 86.102 Can I appeal a
decision?
No comments received.
Section 86.103 Can the Director
authorize an exception to this part?
No comments received.
Subpart I—Information Collection
Section 86.110 What are the
information collection requirements of
this part?
No comments received.
tkelley on DSK3SPTVN1PROD with RULES2
Required Determinations
Regulatory Planning and Review
(Executive Orders 12866 and 13563)
Executive Order 12866 provides that
the Office of Information and Regulatory
Affairs (OIRA) will review all significant
rules. OIRA has determined that this
rule is not significant.
Executive Order 13563 reaffirms the
principles of E.O. 12866 while calling
for improvements in the nation’s
regulatory system to promote
predictability, to reduce uncertainty,
and to use the best, most innovative,
and least burdensome tools for
achieving regulatory ends. The
executive order directs agencies to
consider regulatory approaches that
reduce burdens and maintain flexibility
and freedom of choice for the public
where these approaches are relevant,
feasible, and consistent with regulatory
objectives. E.O. 13563 emphasizes
further that regulations must be based
on the best available science and that
the rulemaking process must allow for
public participation and an open
exchange of ideas. We have developed
this rule in a manner consistent with
these requirements.
Regulatory Flexibility Act (5 U.S.C. 601
et seq.)
The Regulatory Flexibility Act
requires an agency to consider the
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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
head of an agency certifies the rule will
not have a significant economic impact
on a substantial number of small
entities. The Small Business Regulatory
Enforcement Fairness Act (SBREFA)
amended the Regulatory Flexibility Act
to require Federal agencies to state the
factual basis for certifying that a rule
will not have a significant economic
impact on a substantial number of small
entities.
We have examined this final rule’s
potential effects on small entities as
required by the Regulatory Flexibility
Act. We have determined that the
changes in the final rule do not have a
significant impact and do not require a
Regulatory Flexibility Analysis because
the changes:
a. Give information to State fish and
wildlife agencies that allows them to
apply for and administer grants more
easily, more efficiently, and with greater
flexibility. Only State fish and wildlife
agencies may receive BIG grants.
b. Address changes in law and
regulation. This helps grant applicants
and recipients by making the regulation
consistent with current standards.
c. Reword and reorganize the
regulation to make it easier to
understand.
d. Allow small entities to voluntarily
become subgrantees of agencies and any
impact on these subgrantees would be
beneficial.
The Service has determined that the
changes primarily affect State
governments and any small entities
affected by the changes voluntarily enter
into mutually beneficial relationships
with a State agency. They are primarily
concessioners and subgrantees and the
impact on these small entities will be
very limited and beneficial in all cases.
Consequently, we certify that because
this final rule will not have a significant
economic effect on a substantial number
of small entities, a Regulatory Flexibility
Analysis is not required.
In addition, this final rule is not a
major rule under SBREFA (5 U.S.C.
804(2)) and will not have a significant
impact on a substantial number of small
entities because it 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
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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. 1501 et seq.)
establishes requirements for Federal
agencies to assess the effects of their
regulatory actions on State, local, and
tribal governments and the private
sector. The Act requires each Federal
agency, to the extent permitted by law,
to prepare a written assessment of the
effects of 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
1 year. We have determined the
following under the Unfunded
Mandates Reform Act:
a. As discussed in the determination
for the Regulatory Flexibility Act, this
final rule will not have a significant
economic effect on a substantial number
of small entities.
b. The regulation does not require a
small government agency plan or any
other requirement for expending 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 eligible agency.
d. The final rule clarifies and
improves upon the current regulations
allowing State, local, and tribal
governments and the private sector to
receive the benefits of grant funding in
a more flexible, efficient, and effective
manner.
e. Any costs incurred by a State, local,
or tribal government or the private
sector are voluntary. There are no
mandated costs associated with the final
rule.
f. The benefits of grant funding
outweigh the costs. The Federal
Government provides up to 75 percent
of the total project costs in each
requested grant to the 50 States, the
Commonwealth of Puerto Rico, and the
District of Columbia. The Federal
Government will also waive the first
$200,000 of match for each grant to the
Commonwealth of the Northern Mariana
Islands and the territories of Guam, the
U.S. Virgin Islands, and American
Samoa. Of the 50 States and 6 other
jurisdictions that voluntarily are eligible
to apply for grants in these programs
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each year, 95 percent have participated.
This is clear evidence that the benefits
of this grant funding outweigh the costs.
g. This final rule will not produce a
Federal mandate of $100 million or
greater in any year, i.e., it is not a
‘‘significant regulatory action’’ under
the Unfunded Mandates Reform Act.
Takings
This final rule will not have
significant takings implications under
E.O. 12630 because it will not have a
provision for taking private property.
Therefore, a takings implication
assessment is not required.
National Environmental Policy Act
tkelley on DSK3SPTVN1PROD with RULES2
Federalism
This final rule will not have sufficient
Federalism effects to warrant preparing
a federalism summary impact statement
under E.O. 13132. It would not interfere
with the States’ ability to manage
themselves or their funds. We work
closely with the States administering
these programs. They helped us identify
those sections of the current regulations
needing further consideration and new
issues that prompted us to develop a
regulatory response. In drafting the final
rule, we received comments from the
Sport Fishing and Boating Partnership
Council, a nongovernmental committee
established under the Federal Advisory
Committee Act; the States Organization
for Boating Access; the Joint Federal/
State Task Force on Federal Assistance
Policy; and individual States.
Civil Justice Reform
The Office of the Solicitor has
determined under E.O. 12988 that the
rule will not unduly burden the judicial
system and meets the requirements of
sections 3(a) and 3(b)(2) of the Order.
The final rule will help grantees because
it:
a. Updates the regulations to reflect
changes in policy and practice and
recommendations received during the
past 14 years;
b. Makes the regulations easier to use
and understand by improving the
organization and using plain language;
c. Modifies the final rule to amend 50
CFR part 86 published in the Federal
Register at 66 FR 5282 on January 18,
2001, based on subsequent experience;
and
d. Adopts recommendations on new
issues received from State fish and
wildlife agencies and the Sport Fishing
and Boating Partnership Council since
we published the current rule.
Paperwork Reduction Act
This final rule does not contain new
information collection requirements that
require approval under the PRA (44
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U.S.C. 3501 et seq.). OMB has reviewed
and approved the U.S. Fish and Wildlife
Service application and reporting
requirements associated with the
Boating Infrastructure Grant Program
and assigned OMB Control Number
1018–0109, which expires September
30, 2015. We may not conduct or
sponsor and you are not required to
respond to a collection of information
unless it displays a currently valid OMB
control number.
We have analyzed this rule under the
National Environmental Policy Act (42
U.S.C. 4321 et seq.) 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
given 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-toGovernment Relations with Native
American Tribal Governments’’ (59 FR
22951), E.O. 13175, and 512 DM 2. We
have determined that there are no
potential effects. This final rule will not
interfere with the tribes’ ability to
manage themselves or their funds.
Energy Supply, Distribution, or Use
(E.O. 13211)
E.O. 13211 addresses regulations that
significantly affect energy supply,
distribution, and use, and requires
agencies to prepare Statements of
Energy Effects when undertaking certain
actions. This rule is not a significant
regulatory action under E.O. 12866 and
does not affect energy supplies,
distribution, or use. Therefore, this
action is not a significant energy action
and no Statement of Energy Effects is
required.
List of Subjects in 50 CFR Part 86
Administrative practice and
procedure, Boats and boating safety,
Fishing, Grants administration, Grant
programs, Harbors, Intermodal
transportation, Marine resources,
Natural resources, Navigation (water),
Recreation and recreation areas,
Reporting and recordkeeping
requirements, Rivers, Signs and
symbols, Vessels, Water resources,
Waterways.
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26161
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 86 to read
as follows:
PART 86—BOATING
INFRASTRUCTURE GRANT PROGRAM
Subpart A—General
Sec.
86.1
86.2
86.3
What does this part do?
What is the purpose of BIG?
What terms do I need to know?
Subpart B—Program Eligibility
86.10 Who may apply for a BIG grant?
86.11 What actions are eligible for funding?
86.12 What types of construction and
services does boating infrastructure
include?
86.13 What operational and design features
must a facility have where a BIG-funded
facility is located?
86.14 How can I receive BIG funds for
facility maintenance?
86.15 How can dredging qualify as an
eligible action?
86.16 What actions are ineligible for BIG
funding?
86.17 Who must own the site of a BIGfunded facility?
86.18 How can I ensure that a BIG-funded
facility continues to serve its intended
purpose for its useful life?
86.19 What if a BIG-funded facility would
benefit both eligible and ineligible users?
Subpart C—Federal Funds and Match
86.30 What is the source of BIG funds?
86.31 How does the Service know how
much money will be available for BIG
grants each year?
86.32 What are the match requirements?
86.33 What information must I give on
match commitments, and where do I give
it?
86.34 What if a partner is not willing or
able to follow through on a match
commitment?
Subpart D—Application for a Grant
86.40 What are the differences between BIG
Tier 1—State grants and BIG Tier 2—
National grants?
86.41 How do I apply for a grant?
86.42 What do I have to include in a grant
application?
86.43 What information must I put in the
project statement?
86.44 What if I need more than the
maximum Federal share and required
match to complete my BIG-funded
project?
86.45 If the Service does not select my grant
application for funding, can I apply for
the same project the following year?
86.46 What changes can I make in a grant
application after I submit it?
Subpart E—Project Selection
86.50 Who ranks BIG Tier 2—National grant
applications?
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86.51 What criteria does the Service use to
evaluate BIG Tier 2—National
applications?
86.52 What does the Service consider when
evaluating a project on the need for more
or improved boating infrastructure?
86.53 What factors does the Service
consider for benefits to eligible users that
justify the cost?
86.54 What does the Service consider when
evaluating a project on boater access to
significant destinations and services that
support transient boater travel?
86.55 What does the Service consider as a
partner for the purposes of these ranking
criteria?
86.56 What does the Service consider when
evaluating a project that includes more
than the minimum match?
86.57 What does the Service consider when
evaluating contributions that a partner
brings to a project?
86.58 What does the Service consider when
evaluating a project for a physical
component, technology, or technique
that will improve eligible user access?
86.59 What does the Service consider when
evaluating a project for innovative
physical components, technology, or
techniques that improve the BIG project?
86.60 What does the Service consider when
evaluating a project for demonstrating a
commitment to environmental
compliance, sustainability, and
stewardship?
86.61 What happens after the Director
approves projects for funding?
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Subpart F—Grant Administration
86.70 What standards must I follow when
constructing a BIG-funded facility?
86.71 How much time do I have to
complete the work funded by a BIG
grant?
86.72 What if I cannot complete the project
during the period of performance?
86.73 How long must I operate and
maintain a BIG-funded facility, and who
is responsible for the cost of facility
operation and maintenance?
86.74 How do I determine the useful life of
a BIG-funded facility?
86.75 How should I credit BIG?
86.76 How can I use the logo for BIG?
86.77 How must I treat program income?
86.78 How must I treat income earned after
the period of performance?
Subpart G—Facility Operations and
Maintenance
86.90 How much must an operator of a BIGfunded facility charge for using the
facility?
86.91 May an operator of a BIG-funded
facility increase or decrease user fees
during its useful life?
86.92 Must an operator of a BIG-funded
facility allow public access?
86.93 May I prohibit overnight use by
eligible vessels at a BIG-funded facility?
86.94 Must I give information to eligible
users and the public about BIG-funded
facilities?
Subpart H—Revisions and Appeals
86.100 Can I change the information in a
grant application after I receive a grant?
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86.101 How do I ask for a revision of a
grant?
86.102 Can I appeal a decision?
86.103 Can the Director authorize an
exception to this part?
Subpart I—Information Collection
86.110 What are the information-collection
requirements of this part?
Authority: 16 U.S.C. 777c, g, and g–1.
Subpart A—General
§ 86.1
What does this part do?
(a) This part tells States how they may
apply for and receive grants from the
Boating Infrastructure Grant program
(BIG) Tier 1-State and Tier 2-National
subprograms. Section 86.40 describes
the differences between these two
subprograms.
(b) The terms you, your, and I refer to
a State agency that applies for or
receives a BIG grant. You may also
apply to a subgrantee with which a State
agency has a formal agreement to
construct, operate, or maintain a BIGfunded facility.
(c) The terms we, us, and our refer to
the U.S. Fish and Wildlife Service.
§ 86.2
What is the purpose of BIG?
The purpose of BIG is to construct,
renovate, and maintain boating
infrastructure facilities for transient
recreational vessels at least 26 feet long.
§ 86.3
What terms do I need to know?
For the purposes of this part, we
define these terms:
BIG-funded facility means only the
part of a facility that we fund through
a BIG grant.
Boating infrastructure means all of the
structures, equipment, accessories, and
services that are necessary or desirable
for a facility to accommodate eligible
vessels. See § 86.12 for examples of
boating infrastructure.
Capital improvement means:
(1) A new structure that costs at least
$25,000 to build; or
(2) Altering, renovating, or repairing
an existing structure if it increases the
structure’s useful life by 10 years or if
it costs at least $25,000.
Concessioner means an entity with
which a State has a written agreement
to operate or manage a BIG-funded
facility. The agreement with a
concessioner may or may not involve a
financial exchange. A concessioner is
not a contractor or vendor. You pay a
contractor or vendor to perform specific
duties or supply specific materials
according to a written contract.
Concessioners, vendors, and contractors
are not grant recipients.
Construction means the act of
building or significantly altering,
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renovating, or repairing a structure.
Clearing and reshaping land and
demolishing structures are types or
phases of construction. Examples of
structures are buildings, docks, piers,
breakwaters, and slips.
Director means:
(1) The Director of the Fish and
Wildlife Service whom the Secretary of
the Interior has delegated authority to
administer BIG nationally; or
(2) A deputy or another person whom
the Director has delegated authority
over BIG.
Eligible user means an operator or
passenger of an eligible vessel.
Eligible vessel means a transient
recreational vessel at least 26 feet long.
The term includes vessels that are
owned, loaned, rented, or chartered.
The term does not include:
(1) Commercial vessels;
(2) Vessels that dock or operate
permanently from the facility where a
BIG-funded project is located; or
(3) Vessels that receive payment to
routinely transport passengers on a
prescribed route, such as cruise ships,
dive boats, and ferries.
Facility means the structures,
equipment, and operations that:
(1) Provide services to boaters at one
location; and
(2) Are under the control of a single
operator or business identified in the
grant application.
Grant means an approved award of
money, the principal purpose of which
is to transfer funds from a Federal
awarding agency to the non-Federal
entity (grantee) to carry out an
authorized public purpose and includes
the matching cash and any matching inkind contributions. The legal instrument
used is a grant agreement.
Grants.gov is a centralized location for
States and other entities to find and
apply for Federal funding. It is located
at https://www.grants.gov. We require
States to use grants.gov, or any system
that replaces it, to apply for BIG grants.
Maintenance means keeping
structures or equipment in a condition
to serve the intended purpose. It
includes cyclical or occasional actions
to keep facilities fully functional. It does
not include operational actions such as
janitorial work. Examples of
maintenance actions are:
(1) Lubricating mechanical
components of BIG-funded equipment;
(2) Replacing minor components of a
BIG-funded improvement, such as bolts,
boards, and individual structural
components; and
(3) Painting, pressure washing, and
repointing masonry.
Marketing means an activity that
promotes a business to interested
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customers for the financial benefit of the
facility. It may include a plan for sales
techniques and strategies, business
communication, and business
development. A business uses
marketing to find, satisfy, and keep a
customer.
Match means the value of any cash or
in-kind contributions required or
volunteered to complete the BIG-funded
facility that are not borne by the Federal
Government, unless a Federal statute
authorizes such match. Match must
follow the criteria at 2 CFR 200.306(b).
Navigable waters means waters that
are deep and wide enough for the
passage of eligible vessels within the
water body.
Operation means actions that allow a
BIG-funded facility or parts of a BIGfunded facility to perform their function
on a daily or frequent basis. Examples
of operation are janitorial work, service
workers, facility administration,
utilities, rent, taxes, and insurance.
Operator means an individual or
entity that is responsible for operating a
BIG-funded facility. An operator may be
a grantee, a subgrantee, a concessioner,
or another individual or entity that the
grantee has an arrangement with to
operate the BIG-funded facility.
Personal property means anything
tangible or intangible that is not real
property.
Program income means gross income
earned by the grantee or subgrantee that
is directly generated by a grantsupported activity, or earned as a result
of the grant, during the period of
performance.
Project means one or more related
actions that are eligible for BIG funding,
achieve specific goals and objectives of
BIG, and in the case of construction,
occur at only one facility.
Project cost means total allowable
costs incurred under BIG and includes
Federal funds awarded through the BIG
grant and all non-Federal funds given as
the match or added to the Federal and
matching shares to complete the BIGfunded project.
Public communication means
communicating with the public or news
media about specific actions or
achievements directly associated with
BIG. The purpose is to inform the public
about BIG-funded projects or the BIG
program.
Real property means one, several, or
all interests, benefits, and rights
inherent in owning a parcel of land. A
parcel includes anything physically and
firmly attached to it by a natural or
human action. Examples of real
property in this rule include fee and
leasehold interests, easements, fixed
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docks, piers, permanent breakwaters,
buildings, utilities, and fences.
Regional Office means the main
administrative office of one of the
Service’s geographic Regions in which a
BIG-funded project is located. Each
Regional Office has a:
(1) Regional Director appointed by the
Director to be the chief executive official
of the Region and authorized to
administer Service activities in the
Region, except for those administered
directly by the Service’s Headquarters
Office; and
(2) Division of Wildlife and Sport Fish
Restoration (WSFR) or its equivalent
that administers BIG grants.
Renovate means to rehabilitate all or
part of a facility to restore it to its
intended purpose or to expand its
purpose to allow use by eligible vessels
or eligible users.
Scope of a project means the purpose,
objectives, approach, and results or
benefits expected, including the useful
life of any capital improvement.
Service means the U.S. Fish and
Wildlife Service.
State means any State of the United
States, the Commonwealths of Puerto
Rico and the Northern Mariana Islands,
the District of Columbia, and the
territories of Guam, the U.S. Virgin
Islands, and American Samoa.
Transient means travel to a single
facility for day use or staying at a single
facility for up to 15 days.
Useful life means the period during
which a BIG-funded capital
improvement is capable of fulfilling its
intended purpose with adequate routine
care and maintenance. See §§ 86.73 and
86.74.
Subpart B—Program Eligibility
§ 86.10
Who may apply for a BIG grant?
One agency in each eligible State may
apply for a BIG grant if authorized to do
so by:
(a) A statute or regulation of the
eligible jurisdiction;
(b) The Governor of the State,
Commonwealth, or territory; or
(c) The Mayor of the District of
Columbia.
§ 86.11 What actions are eligible for
funding?
(a) The following actions are eligible
for BIG funding if they are for eligible
users or eligible vessels:
(1) Construct, renovate, or maintain
publicly or privately owned boating
infrastructure (see § 86.12) following the
requirements at § 86.13. This may
include limited repair or restoration of
roads, parking lots, walkways, and other
surface areas damaged as a direct result
of BIG-funded construction.
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(2) Conduct actions necessary to
construct boating infrastructure, such
as:
(i) Engineering, economic,
environmental, historic, cultural, or
feasibility studies or assessments; and
(ii) Planning, permitting, and
contracting.
(3) Dredging a channel, boat basin, or
other boat passage following the
requirements at § 86.15.
(4) Install navigational aids to give
transient vessels safe passage between a
facility and navigable channels or open
water.
(5) Produce information and
education materials specific to BIG or a
BIG-funded project and that credit BIG
as a source of funding when
appropriate. Examples of eligible
actions include:
(i) Locating BIG-funded facilities on
charts and cruising guides;
(ii) Creating Statewide or regional
brochures telling boaters about BIG and
directing them to BIG-funded facilities;
(iii) Advertising a BIG-funded facility
in print or electronic media with the
emphasis on BIG, the BIG-funded
facility, or services for eligible users,
and not on marketing the marina as a
whole;
(iv) Marina newsletter articles, marina
or agency Web pages, and other
communications you produce that are
directly related to the BIG-funded
project;
(v) Giving boaters information and
resources to help them find and use the
BIG-funded facility; and
(vi) Public communication.
(6) Record the Federal interest in the
real property.
(7) Use BIG Tier 1—State grant awards
to administer BIG Tier 1—State and BIG
Tier 2—National grants, or grant
programs, Statewide. This includes
coordinating and monitoring to ensure
BIG-funded facilities are wellconstructed, meet project objectives,
and serve the intended purpose for their
useful life; and to manage BIG grant
performance or accomplishments.
(b) You may ask your Regional Office
to approve preaward costs for eligible
actions. You incur preaward costs at
your own risk, as we will only
reimburse you for preaward costs we
approved if you receive a grant.
(c) Applicants may seek funding for
installing pumpout facilities through the
Clean Vessel Act Grant Program (CVA)
instead of including the cost as part of
a BIG grant application. A State may
require a pumpout be funded through
CVA, Catalog of Federal Domestic
Assistance number 15.616.
(d) Other actions may qualify for BIG
funding, subject to our approval, if they
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achieve the purposes of BIG. We will
describe actions we approve and how
they are eligible for BIG funding in the
full text of the annual Notice of Funding
Opportunity (NOFO).
§ 86.12 What types of construction and
services does boating infrastructure
include?
Boating infrastructure may include:
(a) Boat slips, piers, mooring buoys,
floating docks, dinghy docks, day docks,
and other structures for boats to tie-up
and gain access to the shore or services.
(b) Fuel stations, restrooms, showers,
utilities, and other amenities for
transient-boater convenience.
(c) Lighting, communications, buoys,
beacons, signals, markers, signs, and
other means to support safe boating and
give information to aid boaters.
(d) Breakwaters, sea walls, and other
physical improvements to allow an area
to offer a harbor of safe refuge. A harbor
of safe refuge is an area that gives
eligible vessels protection from storms.
To be a harbor of safe refuge, the facility
must offer a place to secure eligible
vessels and offer access to provisions
and communication for eligible users.
(e) Equipment and structures for
collecting, disposing of, or recycling
liquid or solid waste from eligible
vessels or for eligible users.
tkelley on DSK3SPTVN1PROD with RULES2
§ 86.13 What operational and design
features must a facility have where a BIGfunded facility is located?
(a) At project completion, a facility
where a BIG-funded facility is located
must:
(1) Be open to eligible users and
operated and maintained for its
intended purpose for its useful life;
(2) Clearly designate eligible uses and
inform the public of restrictions;
(3) Offer security, safety, and service
for eligible users and vessels;
(4) Be accessible by eligible vessels on
navigable waters;
(5) Allow public access as described
at § 86.92;
(6) Have docking or mooring sites
with water access at least 6 feet deep at
the lowest tide or fluctuation, unless the
facility qualifies under paragraph (c) of
this section; and
(7) Have an operational pumpout
station if:
(i) Eligible vessels stay overnight; and
(ii) Available pumpout service is not
located within 2 nautical miles; or
(iii) State or local laws require one on
site.
(b) We will waive the pumpout
requirement if you show in the grant
application the inability to install a
pumpout.
(1) We will review your request and
will grant the waiver if you present
circumstances that show:
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(i) A hardship due to lack of utilities
or other difficult obstacles, such as a
BIG-funded facility on an island with no
power or a remote location where the
equipment cannot be serviced or
maintained regularly;
(ii) State or local law does not allow
septic-waste disposal facilities at the
location;
(iii) You are in the process of applying
for a CVA grant for the same award year
as the BIG grant to install a pumpout
station as part of the BIG-funded
facility; or
(iv) You have received a CVA grant
and will install a pumpout station as
part of the BIG-funded facility on or
before the time the BIG-funded facility
is completed.
(2) When we waive the pumpout
requirement, the BIG-funded facility
must inform boaters:
(i) They are required to properly treat
or dispose of septic waste; and
(ii) Where they can find information
that will direct them to nearby pumpout
stations.
(3) If we deny your request, we will
follow the process described in the
annual NOFO.
(4) If you seek an allowance based on
this paragraph, you must include
supporting information in the grant
application as described at § 86.43(n)(1).
(c) We will allow water access at a
depth less than 6 feet if you can show
that the BIG-funded facility will serve
its intended purpose for typical eligible
users that visit that location.
(d) Any of these design features may
already be part of the facility, or be
funded through another source, and
need not be included as part of the BIG
project.
§ 86.14 How can I receive BIG funds for
facility maintenance?
(a) For BIG Tier 1—State and BIG Tier
2—National grants:
(1) You may request BIG funds for
facility maintenance only if you will
complete the maintenance action during
the period of performance.
(2) You may apply user fees collected
at the BIG-funded facility after the
period of performance to the
maintenance of the facility.
(b) For BIG Tier 1—State grants:
(1) You may request BIG funds for
one-time or as-needed maintenance
costs at any BIG-eligible facility as long
as the costs are discrete and follow
paragraph (a) of this section.
(2) If you use BIG funds for
maintenance at a facility that has
received a BIG grant in the past, you
must extend the useful life of each
affected capital improvement
accordingly.
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(3) States may limit or exclude BIG
maintenance funding they make
available to subgrantees.
(c) For BIG Tier 2—National grants,
you may request BIG funds for
maintenance if it directly benefits
eligible users and is directly related to
the BIG project. You are responsible for
all maintenance costs after the period of
performance except as provided at
paragraph (b) of this section.
§ 86.15 How can dredging qualify as an
eligible action?
(a) Dredging in this part includes the
physical action of removing sediment
from the basin and any associated
actions, such as engineering, permitting,
dredge-material management, and other
actions or costs that occur because of
the dredging. Dredging can qualify as an
eligible action under the grant only if
the costs for the dredging-related actions
do not exceed $200,000.
(b) When you complete the project,
the BIG-funded dredged area must:
(1) Have navigable water depth to
accommodate eligible vessels as
described at § 86.13(a)(6);
(2) Allow safe, accessible navigation
by eligible vessels to, from, and within
the BIG-funded facility; and
(3) Allow eligible vessels to dock
safely and securely at transient slips.
(c) You must show in the grant
application that:
(1) Dredging is needed to fulfill the
purpose and objectives of the proposed
project; and
(2) You have allocated the dredging
costs between the expected use by
eligible vessels and ineligible vessels.
(d) You certify by signing the grant
application that you have enough
resources to maintain the dredged area
at the approved width and depth for the
useful life of the BIG-funded facility,
under typical conditions.
§ 86.16 What actions are ineligible for BIG
funding?
(a) These actions or costs are
ineligible for BIG funding:
(1) Law enforcement.
(2) Direct administration and
operation of the facility, such as
salaries, utilities, and janitorial duties.
Janitorial duties may include:
(i) Routine cleaning;
(ii) Trash and litter collection and
removal; and
(iii) Restocking paper products.
(3) Developing a State plan to
construct, renovate, or maintain boating
infrastructure.
(4) Acquiring land or any interest in
land.
(5) Constructing, renovating, or
maintaining roads or parking lots,
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except limited action as described at
§ 86.11(a)(1).
(6) Constructing, renovating, or
maintaining boating infrastructure for:
(i) Shops, stores, food service, other
retail businesses, or lodging;
(ii) Facility administration or
management, such as a harbormaster’s
or dockmaster’s office; or
(iii) Transportation, storage, or
services for boats on dry land, such as
dry docks, haul-outs, and boat
maintenance and repair shops.
(7) Purchasing or operating service
boats to transport boaters to and from
mooring areas.
(8) Marketing. Examples of ineligible
marketing actions include:
(i) Giveaway items promoting the
business or agency;
(ii) General marina or agency
newsletters or Web sites promoting the
marina or agency;
(iii) Exhibits at trade shows promoting
anything other than the BIG-funded
facility; and
(iv) Outreach efforts directed at the
marina as a business or the agency as a
whole and not focused on BIG or the
BIG-funded facility.
(9) Constructing, renovating, or
maintaining boating infrastructure that
does not:
(i) Include design features as
described at § 86.13;
(ii) Serve eligible vessels or users; and
(iii) Allow public access as described
at § 86.92.
(10) Purchase of supplies and other
expendable personal property not
directly related to achieving the project
objectives.
(b) Other activities may be ineligible
for BIG funding if they are inconsistent
with the:
(1) Purpose of BIG; or
(2) Applicable Cost Principles at 2
CFR part 200, subpart F.
tkelley on DSK3SPTVN1PROD with RULES2
§ 86.17 Who must own the site of a BIGfunded facility?
(a) You or another entity approved by
us must own or have a legal right to
operate the site of a BIG-funded facility.
If you are not the owner, you must be
able to show, before we approve your
grant, that your contractual
arrangements with the owner of the site
will ensure that the owner will use the
BIG-funded facility for its authorized
purpose for its useful life.
(b) Subgrantees or concessioners may
be a local or tribal government, a
nonprofit organization, a commercial
enterprise, an institution of higher
education, or a State agency other than
the agency receiving the grant.
(c) Subgrantees that are commercial
enterprises are subject to 2 CFR part
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200, subparts A through D, for grant
administrative requirements.
§ 86.18 How can I ensure that a BIGfunded facility continues to serve its
intended purpose for its useful life?
(a) When you design and build your
BIG-funded facility, you must consider
the features, location, materials, and
technology in reference to the
geological, geographic, and climatic
factors that may have an impact on its
useful life.
(b) You must record the Federal
interest in real property that includes a
BIG-funded capital improvement
according to the assurances required in
the grant application and guidance from
the Regional WSFR Office.
(c) If we direct you to do so, you must
require that subgrantees record the
Federal interest in real property that
includes a BIG-funded capital
improvement.
(d) If we do not direct you to act as
required by paragraph (c) of this section,
you may require subgrantees to record
the Federal interest in real property that
includes a BIG-funded capital
improvement.
(e) You must state in your subaward
that subgrantees must not alter the
ownership, purpose, or use of the BIGfunded facility as described in the
project statement without the approval
of you and the WSFR Regional Office.
(f) You may impose other
requirements on subgrantees, as allowed
by law, to reduce State liability for the
BIG-funded facility. Examples are
insurance, deed restrictions, and a
security interest agreement, which uses
subgrantee assets to secure performance
under the grant.
§ 86.19 What if a BIG-funded facility would
benefit both eligible and ineligible users?
You may assign any share of the costs
to the BIG grant only if the BIG-funded
facility or a discrete element of the BIGfunded facility benefits only eligible
users. If a cost does not exclusively
benefit eligible users, you must allocate
costs accordingly. A discrete element
has a distinct purpose, such as a fuel
station, pumpout facility, breakwater, or
dock system.
(a) You must clearly show and
explain in the project statement:
(1) The anticipated benefits of each
project, discrete elements, and major
components;
(2) The breakdown of costs, as
described at § 86.43(i), including the
basis or method you use to allocate costs
between eligible and ineligible users;
and
(3) Your reasoning in determining
how to allocate costs, based on
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paragraphs (a) through (e) of this section
and any other guidance in the annual
NOFO.
(b) After you submit the application,
if we do not agree with your cost
allocation using paragraph (a) of this
section, we will contact you. We may
ask you to clarify your information. If
we do not agree that the allocation is
equitable, we may negotiate an equitable
allocation. We must be able to agree that
you are appropriately allocating costs
between eligible and ineligible users
based on the expected use before we
consider your application for award.
(c) If a proposed BIG-funded facility,
or a discrete element, minor component,
or single action of the BIG-funded
project, gives a secondary or minimal
benefit to all users, we will not require
you to allocate costs between eligible
and ineligible users for that benefit.
Examples of how we will apply this rule
are:
(1) The primary purpose is to benefit
eligible users directly, with the
secondary benefit for both eligible and
ineligible users. You must clearly state
the exclusive benefit to eligible users in
your application. The secondary benefit
cannot exclude eligible users from the
primary purpose. For example, if you
construct a dock system for exclusive
use by eligible vessels and a secondary
benefit of the dock system is protection
of the marina from wave action, you
would not have to allocate costs for the
secondary benefit. However, the
secondary benefit cannot be docking for
ineligible vessels because it would
exclude eligible users from the primary
purpose.
(2) The secondary benefit to ineligible
users is not the primary purpose, is
minimal, and you do not add special
features to accommodate ineligible
users. For example, you do not have to
allocate costs between user groups for a
gangway from the transient dock,
designed exclusively for eligible users,
even though it is accessible to the
general public. However, if you
construct the gangway to accommodate
the expected ineligible users, then you
must allocate costs between user groups.
(3) The expected benefits to both
eligible and ineligible users have
minimal value. If the component has a
value of .0025 percent or less than the
maximum available Federal award plus
required match, you do not have to
allocate costs for that component. We
will post the amount of the minimal
value each year in the annual NOFO.
For example, if the total maximum
Federal award and required match for a
BIG Tier 2—National project is $2
million, you do not have to allocate
costs between user groups for any
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discrete project element, component, or
action with a value of $5,000 or less.
(d) Examples of actions for which you
must allocate costs between user groups
are the following, unless paragraph (b)
of this section applies:
(1) You propose a 200-foot dock for
eligible user tie-up spaces that you
attach to the shore at a boat launch. It
will attract ineligible use as a tie-up for
boaters as they enter and exit the water.
You must allocate costs between the
expected eligible and ineligible use.
(2) You propose a breakwater, fuel
station, pumpout station, restroom,
dredging, navigational aids, or other
multiuse or multipurpose action.
(e) Examples of actions for which you
do not need to allocate costs between
user groups are:
(1) You propose to construct,
renovate, or maintain docks specifically
for eligible vessels.
(2) You propose to produce
information and educational materials
specific to BIG.
(f) You must clearly inform boaters
when access by ineligible users is
limited or restricted following the
guidance at § 86.94.
(g) We may ask you to clarify or
change how you allocate costs in your
grant application if they do not meet our
standards. We may reject costs or
applications that do not allocate costs
between eligible and ineligible users
according to the requirements of this
section and the NOFO.
Subpart C—Federal Funds and Match
§ 86.30
What is the source of BIG funds?
tkelley on DSK3SPTVN1PROD with RULES2
(a) BIG receives Federal funding as a
percentage of the annual revenues to the
Sport Fish Restoration and Boating
Trust Fund (Trust Fund) [26 U.S.C.
4161(a), 4162, 9503(c), and 9504].
(b) The Trust Fund receives revenue
from sources including:
(1) Excise taxes paid by manufacturers
on sportfishing equipment and electric
outboard motors;
(2) Fuel taxes attributable to
motorboats and nonbusiness use of
small-engine power equipment; and
(3) Import duties on fishing tackle,
yachts, and pleasure craft.
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§ 86.31 How does the Service know how
much money will be available for BIG grants
each year?
(a) We estimate funds available for
BIG grants each year based on the
revenue projected for the Trust Fund.
We include this estimate when we issue
a NOFO at https://www.grants.gov.
(b) We calculate the actual amount of
funds available for BIG grants based on
tax collections, any funds carried over
from previous fiscal years, and available
unobligated BIG funds.
§ 86.32
What are the match requirements?
(a) The Act requires that you or
another non-Federal partner must pay at
least 25 percent of eligible and
allowable BIG-funded facility costs. We
must waive the first $200,000 of the
required match for each grant to the
Commonwealth of the Northern Mariana
Islands and the territories of American
Samoa, Guam, and the U.S. Virgin
Islands (48 U.S.C. 1469a).
(b) Match may be cash contributed
during the funding period or in-kind
contributions of personal property,
structures, and services including
volunteer labor, contributed during the
period of performance.
(c) Match must be:
(1) Necessary and reasonable to
achieve project objectives;
(2) An eligible activity or cost;
(3) From a non-Federal source, unless
you show that a Federal statute
authorizes the specific Federal source
for use as match; and
(4) Consistent with 2 CFR 200.29 and
200.306, and any other applicable
sections of 2 CFR part 200. This
includes any regulations or policies that
replace or supplement 2 CFR part 200.
(d) Match must not include:
(1) An interest in land or water;
(2) The value of any structure
completed before the beginning of the
period of performance, unless the
Service approves the activity as a
preaward cost;
(3) Costs or in-kind contributions that
have been or will be counted as
satisfying the cost-sharing or match
requirement of another Federal grant, a
Federal cooperative agreement, or a
Federal contract, unless authorized by
Federal statute; or
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(4) Any funds received from another
Federal source, unless authorized by
Federal statute.
§ 86.33 What information must I give on
match commitments, and where do I give
it?
(a) You must give information on the
amount and the source of match for
your proposed BIG-funded facility on
the standard grant application form at
https://www.grants.gov.
(b) You must also give information on
the match commitment by the State, a
subgrantee, or other third party in the
project statement under ‘‘Match and
Other Contributions.’’
(c) In giving the information required
at paragraph (b) of this section, you
must:
(1) State the amount of matching cash;
(2) Describe any matching in-kind
contributions;
(3) State the estimated value of any inkind contributions; and
(4) Explain the basis of the estimated
value.
§ 86.34 What if a partner is not willing or
able to follow through on a match
commitment?
(a) You are responsible for all activity
and funding commitments in the grant
application. If you discover that a
partner is not willing or able to meet a
grant commitment, you must notify us
that you will either:
(1) Replace the original partner with
another partner who will deliver the
action or the funds to fulfill the
commitment as stated in the grant
application; or
(2) Give either cash or an in-kind
contribution(s) that at least equals the
value and achieves the same objective as
the partner’s original commitment of
cash or in-kind contribution.
(b) If a partner is not willing or able
to meet a match commitment and you
do not have enough money to complete
the BIG-funded facility as proposed, you
must follow the requirements at
§§ 86.44 and 86.100.
Subpart D—Application for a Grant
§ 86.40 What are the differences between
BIG Tier 1—State grants and BIG Tier 2—
National grants?
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COMPARISON OF BIG TIER 1—STATE AND BIG TIER 2—NATIONAL GRANTS
BIG Tier 1—State
(a) What actions are eligible for funding?
(b) What is the amount of Federal funds I can
receive in one BIG grant?
(c) How many grant applications can I submit
each year?
(d) How does the Service choose grant applications for funding?
§ 86.41
How do I apply for a grant?
(a) If you want to apply to be a
subgrantee, you must send an
application to the State agency that
manages BIG following the rules given
by your State. We award BIG funds only
to States.
(b) The director of your State agency
(see § 86.10) or an authorized
representative must certify all standard
forms submitted in the grant application
process in the format that we designate.
(c) States must submit a grant
application through https://
www.grants.gov. The Catalog of Federal
Domestic Assistance (CFDA) number for
BIG is 15.622.
(d) If your State supports Executive
Order 12372, Intergovernmental Review
of Federal Programs, you must send
copies of all standard forms and
supporting information to the State
Clearinghouse or Single Point of Contact
identified at https://
www.whitehouse.gov/omb/grants_spoc/
before sending it through https://
www.grants.gov.
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§ 86.42 What do I have to include in a
grant application?
(a) When you submit a BIG grant
application, you must include standard
forms, a BIG project statement as
described at § 86.43, documents, maps,
images, and other information asked for
in the annual NOFO at https://
www.grants.gov, CFDA 15.622, in the
format we ask for.
(b) You must include supporting
documentation explaining how the
proposed work complies with
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BIG Tier 2—National
Those listed at § 86.11 .....................................
Each year we make at least $200,000 available to each State. We may increase the
award that States may request annually to
an amount above $200,000 if enough funds
are available and it is advantageous to the
program mission. We announce each year
in the annual NOFO posted at https://
www.grants.gov the maximum Federal
funds you may request.
Each State can only request up to the annual
funding limit each year. You can do this by
sending in one grant application with one
project or multiple projects. The Regional
WSFR Office may ask a State with multiple
projects to prepare a separate grant request
for each project, as long as the total of all
projects does not exceed the annual funding limit.
We fund a single grant or multiple grants per
State up to the maximum annual funding
amount for that year.
Those listed at § 86.11 except § 86.11(a)(7).
We may limit funding to a maximum award of
$1.5 million. We may increase the maximum
funding you may request if enough funds
are available and it is advantageous to the
program mission. We announce each year
in the annual NOFO posted at https://
www.grants.gov the recommended maximum Federal funds you may request.
applicable laws and regulations. You
must also state the permits, evaluations,
and reviews you need to complete the
project. After we approve your project,
you will follow guidance at § 86.61 to
complete requirements that will become
part of your application.
(c) After we review your application,
any responses to our requests to give
more information or to clarify
information become part of the
application.
(d) Misrepresentations of the
information you give in an application
may be a reason for us to:
(1) Reject your application; or
(2) Terminate your grant and require
repayment of Federal funds awarded.
(3) Give information to support the
number of transient boats expected to
use the area of the proposed project and
show that the existing facilities
identified at paragraph (a)(1) of this
section are not enough to support them.
(b) Purpose. State the desired outcome
of the project in general or abstract
terms, but in such a way that we can
review the information and apply it to
the competitive review. Base the
purpose on the need as described in
paragraph (a) of this section.
(c) Objectives. Identify specific,
measurable, attainable, relevant, and
time-bound (SMART) outputs related to
the need you are addressing.
(d) Results or benefits expected. (1)
Describe each capital improvement,
service, or other product that will result
from the project, and its purpose.
(2) Describe how the structures,
services, or other products will:
(i) Achieve the need described at
paragraph (a) of this section; and
(ii) Benefit eligible users.
(e) Approach. (1) Describe the
methods to be used to achieve the
objectives. Show that you will use
sound design and proper procedures.
Include enough information on the
status of needed permits, land use
approvals, and other compliance
requirements for us to make a
preliminary assessment.
(2) Give the name, contact
information, qualifications, and role of
each known concessioner or subgrantee.
(3) Explain how you will exercise
control to ensure the BIG-funded facility
continues to achieve its authorized
§ 86.43 What information must I put in the
project statement?
You must put the following
information in the project statement:
(a) Need. Explain why the project is
necessary and how it fulfills the
purpose of BIG. To demonstrate the
need for the project you must:
(1) For construction projects, describe
existing facilities available for eligible
vessels near the proposed project.
Support your description by including
images that show existing structures and
facilities, the proposed BIG-funded
facility, and relevant details, such as the
number of transient slips and the
amenities for eligible users.
(2) Describe how the proposed project
fills a need or offers a benefit not offered
by the existing facilities identified at
paragraph (a)(1) of this section.
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No limit.
We score each grant application according to
ranking criteria at § 86.51. We recommend
applications, based on scores and available
funding, to the Director. The Director selects
the applications for award.
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purpose during the useful life of the
BIG-funded project.
(f) Useful life. Estimate the useful life
in years of each capital improvement for
the proposed project. Explain how you
estimated the useful life of each capital
improvement. You must reference a
generally accepted method used to
determine useful life of a capital
improvement. You will finalize useful
life during the approval process. See
§§ 86.73 and 86.74.
(g) Geographic location. (1) State the
location using Global Positioning
System (GPS) coordinates in the format
we ask for in the annual NOFO.
(2) State the local jurisdiction (county,
city, town, or equivalent), street address,
and water body associated with the
project.
(3) Include maps in your application,
such as:
(i) A small State map that shows the
general location of the project;
(ii) A local map that shows the facility
location and the nearest community,
public road, and navigable water body;
and
(iii) Maps or images that show
proximity to significant destinations,
services that support eligible users,
terrain considerations, access, or other
information applicable to your project.
(iv) Any other map that supports the
information in the project statement.
(h) Project officer. If the Federal Aid
Coordinator for the State agency will be
the project officer, enter the term State
Federal Aid Coordinator under this
heading. If the State Federal Aid
Coordinator will not be the project
officer, give the name, title, work
address, work email, and work
telephone number of the contact person.
The project officer identified should
have a detailed knowledge of the
project. State whether the project officer
has the authority to sign requests for
prior approval, project reports, and
other communications committing the
grantee to a course of action.
(i) Budget narrative. Provide costs and
other information sufficient to show that
the project will result in benefits that
justify the costs. You must use
reasonably available resources to
develop accurate cost estimates for your
project to insure the successful
completion of your BIG-funded facility.
You should discuss factors that would
influence project costs as described at
§ 86.53(d). Costs must be necessary and
reasonable to achieve the project
objectives.
(1) You must state how you will
allocate costs between eligible and
ineligible users following the
requirements at § 86.19 and explain the
method used to allocate costs equitably
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between anticipated benefits for eligible
and ineligible users.
(2) State sources of cash and in-kind
values you include in the project
budget.
(3) Describe any item that has cost
limits or requires our approval and
estimate its cost or value. Examples are
dredging and preaward costs.
(j) Match and other partner
contributions. Identify the cash and inkind contributions that you, a partner,
or other entity contribute to the project
and describe how the contributions
directly and substantively benefits
completion of the project. See §§ 86.32
and 86.33 for required information.
(k) Fees and program income, if
applicable. (1) See § 86.90 for the
information that you must include on
the estimated fees that an operator will
charge during the useful life of the BIGfunded facility.
(2) See §§ 86.77 and 86.78 for an
explanation of how you may use
program income. If you decide that your
project is likely to generate program
income during the period of
performance, you must:
(i) Estimate the amount of program
income that the project is likely to
generate; and
(ii) Indicate how you will apply
program income to Federal and nonFederal outlays.
(l) Relationship with other grants.
Describe the relationship between the
BIG-funded facility and other relevant
work funded by Federal and nonFederal grants that is planned, expected,
or in progress.
(m) Timeline. Describe significant
milestones in completing the project
and any accomplishments to date.
(n) General. (1) If you seek a waiver
based on § 86.13(b), you must include
the request and supporting information
in the grant application following the
instructions in the annual NOFO.
(2) Include any other description or
document we ask for in the annual
NOFO or that you need to support your
proposed project.
(o) Ranking criteria. In BIG Tier 2—
National applications, you must
respond to each of the questions found
in the ranking criteria at § 86.51. We
also publish the questions for these
criteria in the annual NOFO at https://
www.grants.gov.
(1) In addressing the ranking criteria,
refer to the information at §§ 86.52
through 86.60 and any added
information we ask for in the annual
NOFO.
(2) You may give information relevant
to the ranking criteria as part of the
project statement. If you take this
approach, you must reference the
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criterion and give supporting
information to reflect the guidance at
§§ 86.52 through 86.60.
§ 86.44 What if I need more than the
maximum Federal share and required match
to complete my BIG-funded project?
(a) If you plan a BIG project that you
cannot complete with the recommended
maximum Federal award and the
required match, you may:
(1) Find other sources of non-Federal
funds to complete the project;
(2) Divide your larger project into
smaller, distinct, stand-alone projects
and apply for more than one BIG grant,
either in the same year or in different
years. One project cannot depend on the
anticipated completion of another; or
(3) Combine your BIG Tier 1—State
and BIG Tier 2—National funding to
complete a project at a single location.
(b) If you are awarded a grant and find
you cannot complete a BIG project with
the Federal funds and required match,
you may:
(1) Find other sources of non-Federal
funds to complete the project.
(2) Consider if BIG Tier 1—State
funds are available to help complete the
project. This is not a guaranteed option.
(3) Ask for approval to revise the grant
by following the requirements at subpart
H of this part.
(c) For BIG Tier 2—National grants,
we review and rank each application
individually, and each must compete
with other applications for the same
award year.
(d) If you receive a BIG grant for one
of your applications, we do not give
preference to other applications you
submit.
(e) If you do not complete your
project, we may take one or more of the
remedies for noncompliance found at 2
CFR 200.338, and any other regulations
that apply.
§ 86.45 If the Service does not select my
grant application for funding, can I apply for
the same project the following year?
Yes. If we do not select your BIG grant
application for funding, you can apply
for the same project the following year
or in later years.
§ 86.46 What changes can I make in a
grant application after I submit it?
(a) After you submit your grant
application, you can add or change
information up to the date and time that
the applications are due.
(b) After the application due date and
before we announce selected projects,
you can add or change information in
your application only if it does not
affect the scope of the project, would
not affect the score of the application,
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and is not a correction (see paragraph (c)
of this section).
(1) During this period we may ask you
to change the useful life following the
requirements at § 86.74 or allocation of
costs between users of the BIG project
following the requirements at § 86.19.
(2) If your application proposes using
BIG funds for an action we identify as
ineligible, we will decide on a case-bycase basis whether we will allow you to
change your application to remove
identified ineligible costs and if we will
consider your application for funding.
(c) You must inform us of any
incorrect information in an application
as soon as you discover it, either before
or after receiving an award.
(d) We may ask you at any point in
the application process to:
(1) Clarify, correct, explain, or
supplement data and information in the
application;
(2) Justify the eligibility of a proposed
action; or
(3) Justify the allowability of proposed
costs or in-kind contributions.
(e) If you do not respond fully to our
questions at paragraph (d) of this section
in the time allotted, we may decide not
to consider your application for
funding.
(f) If your application is competitive,
but funding is limited and we cannot
fully fund your project, we may tell you
the amount of available funds and ask
you if you wish to accept the reduced
funding amount. We will decide on a
case-by-case basis if we will consider
changes to the scope of your project
based on the reduced funding. Any
changes to the scope of a project must
not result in reducing the number of
points enough to lower your project’s
ranking position. If you choose to accept
the reduced amount, you must amend
your application to reflect all changes,
including the difference in Federal and
non-Federal funding.
Subpart E—Project Selection
§ 86.50 Who ranks BIG Tier 2—National
grant applications?
We assemble a panel of our
professional staff to review, rank, and
recommend grant applications for
funding to the Director. This panel may
include representatives of our Regional
Offices, with Headquarters staff
overseeing the review, ranking, and
recommendation process. Following the
requirements of the Federal Advisory
Committee Act (5 U.S.C. Appendix), the
Director may invite nongovernmental
organizations and other non-Federal
entities to take part in an advisory panel
to make recommendations to the
Director.
§ 86.51 What criteria does the Service use
to evaluate BIG Tier 2—National
applications?
Our panel of professional staff and
any invited participants evaluate BIG
Tier 2—National applications using the
ranking criteria in the following table
and assign points within the range for
each criterion. We may give added
information to guide applicants
regarding these criteria in the annual
NOFO on https://www.grants.gov. This
may include the minimum total points
that your application must receive in
order to qualify for award.
Ranking criteria
Points
(a) Need, Access, and Cost Efficiency ......................................................................................................................
(1) Will the proposed boating infrastructure meet a need for more or improved facilities? ...............................
(2) Will eligible users receive benefits from the proposed boating infrastructure that justify the cost of the
project?.
(3) Will the proposed boating infrastructure accommodate boater access to significant destinations and
services that support transient boater travel?.
(b) Match and Partnerships .......................................................................................................................................
(1) Will the proposed project include private, local, or State funds greater than the required minimum
match?.
(2) Will the proposed project include contributions by private or public partners that contribute to the project
objectives?.
(c) Innovation .............................................................................................................................................................
(1) Will the proposed project include physical components, technology, or techniques that improve eligibleuser access?.
(2) Will the proposed project include innovative physical components, technology, or techniques that improve the BIG-funded project?.
(3) Has the facility where the project is located demonstrated a commitment to environmental compliance,
sustainability, and stewardship and has an agency or organization officially recognized the facility for its
commitment?.
(d) Total possible points .............................................................................................................................................
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§ 86.52 What does the Service consider
when evaluating a project on the need for
more or improved boating infrastructure?
In evaluating a proposed project
under the criterion at §§ 86.51(a)(1) on
the need for more or improved boating
infrastructure facilities, we consider
whether the project will:
(a) Construct new boating
infrastructure in an area that lacks it,
but where eligible vessels now travel or
would travel if the project were
completed;
(b) Renovate a facility to:
(1) Improve its physical condition;
(2) Follow local building codes;
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(3) Improve generally accepted safety
standards; or
(4) Adapt it to a new purpose for
which there is a demonstrated need;
(c) Create accessibility for eligible
vessels by reducing wave action,
increasing depth, or making other
physical improvements;
(d) Expand an existing marina or
mooring site that is unable to
accommodate current or projected
demand by eligible vessels; or
(e) Make other improvements to
accommodate an established eligible
need.
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20 total possible points.
0–10.
0–7.
0–3.
10 total possible points.
0–7.
0–3.
6 total possible points.
0–3.
0–2.
0–1.
36.
§ 86.53 What factors does the Service
consider for benefits to eligible users that
justify the cost?
(a) We consider these factors in
evaluating a proposed project under the
criterion at § 86.51(a)(2) on whether
benefits to eligible users justify the cost:
(1) Total cost of the project;
(2) Total benefits available to eligible
users upon completion of the project;
and
(3) Reliability of the data and
information used to decide benefits
relative to costs.
(b) You must support the benefits
available to eligible users by clearly
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describing them in the project statement
and explaining how they relate to Need
at § 86.43(a).
(c) We will consider the cost relevant
to all benefits to eligible users that are
adequately supported in the application.
We may consider the availability of
preexisting structures and amenities,
but only in the context of the need
identified at § 86.43(a).
(d) Describe in your application any
factors that would influence project
costs, such as:
(1) The need for specialized materials
to meet local codes, address weather or
terrain, or extend useful life;
(2) Increased transportation costs due
to location; or
(3) Other factors that may increase
costs, but whose actions support needed
benefits.
(e) Describe any costs that are
associated with providing a harbor of
safe refuge.
§ 86.54 What does the Service consider
when evaluating a project on boater access
to significant destinations and services that
support transient boater travel?
In evaluating a proposed project
under the criterion on boater access at
§ 86.51(a)(3), we consider:
(a) The degree of access that the BIGfunded facility will give;
(b) The activity, event, or landmark
that makes the BIG-funded facility a
destination, how well known the
attraction is, how long it is available,
and how likely it is to attract boaters to
the facility; and
(c) The availability of services and
safety near the BIG-funded facility, how
easily boaters can access them, and how
well they serve the needs of eligible
users.
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§ 86.55 What does the Service consider as
a partner for the purposes of these ranking
criteria?
(a) The following may qualify as
partners for purposes of the ranking
criteria:
(1) A non-Federal entity, including a
subgrantee.
(2) A Federal agency other than the
Service.
(b) The partner must commit to a
financial contribution or an in-kind
contribution, or to take a voluntary
action during the period of performance.
(c) In-kind contributions or actions
must be necessary and contribute
directly and substantively to the
completion of the project. You must
explain in the grant application how
they are necessary and contribute to
completing the project.
(d) A governmental entity may be a
partner unless its contribution to
completing the project is a mandatory
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§ 86.58 What does the Service consider
when evaluating a project for a physical
component, technology, or technique that
will improve eligible user access?
duty of the agency, such as reviewing a
permit application. A voluntary action
by a government agency or employee is
a partnership.
§ 86.56 What does the Service consider
when evaluating a project that includes
more than the minimum match?
(a) When we evaluate a project under
the criterion for match at § 86.51(b)(1),
we consider how much cash the
applicant and partners commit above
the required minimum match of 25
percent of project costs.
(b) The contribution may be from a
State, a single source, or any
combination of sources.
(c) We will award points as follows:
Percent cash match
Points
26–30 ....................................
31–35 ....................................
36–40 ....................................
41–45 ....................................
46–50 ....................................
51–80 ....................................
81 or higher ..........................
1
2
3
4
5
6
7
(d) We must waive the first $200,000
in match for the entities described at
§ 86.32(a). We will determine the
required match by subtracting the
waived amount from the required 25
percent match and award points using
the table at paragraph (c) of this section.
§ 86.57 What does the Service consider
when evaluating contributions that a
partner brings to a project?
(a) We consider these factors for
partner contributions in evaluating a
proposed project under the criterion at
§ 86.51(b)(2):
(1) The significance of the
contribution to the success of the
project;
(2) How the contribution supports the
actions proposed in the project
statement;
(3) How the partner demonstrates its
commitment to the contribution; and
(4) The ability of the partner to fulfill
its commitment.
(b) We may consider the combined
contributions of several partners,
according to the factors at paragraph (a)
of this section.
(c) To receive consideration for this
criterion, you must show in your
application how a partner, or group of
partners, significantly supports the
project by addressing the factors in
paragraph (a) of this section.
(d) You may describe partner
contributions in the project statement.
(e) Under this criterion, partner
contributions need not exceed the 25
percent required match.
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(a) In evaluating a proposed project
under the criterion at § 85.51(c)(1), we
consider whether the project will
increase the availability of the BIGfunded facility for eligible users or
improve eligible boater access to the
facility by:
(1) Using a new technology or
technique; or
(2) Applying a new use of an existing
technology or technique.
(b) We will not award points for
following access standards set by law.
(c) We will consider if you choose to
complete the project using an optional
or advanced technology or technique
that will improve access, or if you go
beyond the minimum requirements.
(d) To receive consideration for this
criterion, you must describe in the grant
application the current standard and
how you will exceed the standard.
§ 86.59 What does the Service consider
when evaluating a project for innovative
physical components, technology, or
techniques that improve the BIG project?
(a) In evaluating a proposed project
under the criterion at § 86.51(c)(2), we
consider if the project will include
physical components, technology, or
techniques that are:
(1) Newly available; or
(2) Repurposed in a unique way.
(b) Examples of the type of
innovations we will consider are
components, technology, or techniques
that:
(1) Extend the useful life of the BIGfunded project;
(2) Are designed to allow the operator
to save costs, decrease maintenance, or
improve operation;
(3) Are designed to improve BIGeligible services or amenities;
(4) Reduce the carbon footprint of the
BIG-funded facility. Carbon footprint
means the impact of the total set of
greenhouse gas emissions;
(5) Are used during construction
specifically to reduce negative
environmental impacts, beyond
compliance requirements; or
(6) Improve facility resilience.
§ 86.60 What does the Service consider
when evaluating a project for
demonstrating a commitment to
environmental compliance, sustainability,
and stewardship?
(a) In evaluating a project under the
criterion at § 86.51(c)(3), we consider if
the application documents that the
facility where the BIG-funded project is
located has received official recognition
for its voluntary commitment to
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environmental compliance,
sustainability, and stewardship by
exceeding regulatory requirements.
(b) The official recognition must be
part of a voluntary, established program
administered by a Federal or State
agency, local governmental agency, Sea
Grant or equivalent entity, or a State or
Regional marina organization.
(c) The established program must
require the facility to use management
and operational techniques and
practices that will ensure it continues to
meet the high standards of the program
and must contain a component that
requires periodic review.
(d) The facility must have met the
criteria required by the established
program and received official
recognition by the due date of the
application.
§ 86.61 What happens after the Director
approves projects for funding?
(a) After the Director approves
projects for funding, we notify
successful applicants of the:
(1) Amount of the grant;
(2) Documents or clarifications
required, including those required for
compliance with applicable laws and
regulations;
(3) Approvals needed and format for
processing approvals; and
(4) Time constraints.
(b) After we receive the required
forms and documents, we approve the
project and the terms of the grant and
obligate the grant in the Federal
financial management system.
(c) BIG funds are available for Federal
obligation for 3 Federal fiscal years,
starting October 1 of the fiscal year that
funds become available for award. We
do not make a Federal obligation until
you meet the grant requirements. Funds
not obligated within 3 fiscal years are no
longer available.
Subpart F—Grant Administration
tkelley on DSK3SPTVN1PROD with RULES2
§ 86.70 What standards must I follow when
constructing a BIG-funded facility?
(a) You must design and build a BIGfunded facility so that each structure
meets Federal, State, and local
standards.
(b) A Region or a State may require
you to have plans reviewed by a subjectmatter expert if there are questions as to
the safety, structural stability,
durability, or other construction
concerns for projects that will cost more
than $100,000.
§ 86.71 How much time do I have to
complete the work funded by a BIG grant?
(a) We must obligate a grant within 3
Federal fiscal years of the beginning of
the Federal fiscal award year.
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(b) We will work with you to set a
start date within the 3-year period of
obligation. We assign a period of
performance that is no longer than 3
years from the grant start date.
(c) You must complete your project
within the period of performance unless
you ask for and receive a grant
extension.
§ 86.72 What if I cannot complete the
project during the period of performance?
(a) If you cannot complete the project
during the 3-year period of performance,
you may ask us for an extension. Your
request must be in writing, and we must
receive it before the end of the original
period of performance.
(b) An extension is considered a
revision of a grant and must follow
guidance at § 86.101.
(c) We will approve an extension up
to 2 years if your request:
(1) Describes in detail the work you
have completed and the work that you
plan to complete during the extension;
(2) Explains the reasons for delay;
(3) Includes a report on the status of
the project budget; and
(4) Includes assurance that you have
met or will meet all other terms and
conditions of the grant.
(d) If you cannot complete the project
during the extension period, you may
ask us for a second extension. Your
request must be in writing, and we must
receive it before the end of the first
extension. Your request for a second
extension must include all of the
information required at paragraph (b) of
this section and, it must show that:
(1) The extension is justified;
(2) The delay in completion is not due
to inaction, poor planning, or
mismanagement; and
(3) You will achieve the project
objectives by the end of the second
extension.
(e) We require that the Regional
Director and the Service’s Assistant
Director for the Wildlife and Sport Fish
Restoration Program approve requests to
extend a project beyond 5 years of the
grant start date.
§ 86.73 How long must I operate and
maintain a BIG-funded facility, and who is
responsible for the cost of facility operation
and maintenance?
(a) You must operate and maintain a
BIG-funded facility for its authorized
purpose for its useful life. See §§ 86.3,
86.43(f), and 86.74.
(b) Catastrophic events may shorten
the useful life of a BIG-funded facility.
If it is not feasible or is cost-prohibitive
to repair or replace the BIG-funded
facility, you may ask to revise the grant
to reduce the useful-life obligation.
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(c) You are responsible for the costs
of the operation and maintenance of the
BIG-funded facility for its useful life,
except as allowed at § 86.14(b).
§ 86.74 How do I determine the useful life
of a BIG-funded facility?
You must determine the useful life of
your BIG-funded project using the
following:
(a) You must give an informed
estimate of the useful life of the BIGfunded project in your grant
application, including the information
in Steps 1, 2, and 3, in paragraphs (a)(1)
through (3) of this section, as applicable.
(1) Step 1. Identify all capital
improvements that are proposed in your
project. We may reject your application
if you do not include an estimate for
useful life.
(i) Use the definition of capital
improvement at § 86.3.
(ii) The capital improvement must be
a structure or system that serves an
identified purpose.
(iii) Consider the function of the
components in your application and
group those with a similar purpose
together as structures or systems.
(iv) All auxiliary components of your
project (those that are not directly part
of the structure or system) must be
identified as necessary for the continued
use of an identified capital
improvement. For example, a gangway
is not part of the dock system, but is
necessary for access to and from the
dock system, so it could be included in
the useful life of the dock system.
(v) Attach an auxiliary component as
identified at paragraph (a)(1)(iv) of this
section to only one capital
improvement. If it supports more than
one, choose the one with the longest
useful life.
(vi) Examples of structures or systems
that could potentially make up a single
capital improvement are a: Rest room/
shower building; dock system;
breakwater; seawall; basin, as altered by
dredging; or fuel station.
(2) Step 2. Estimate the useful life of
each capital improvement identified in
Step 1 in paragraph (a)(1) of this section.
(i) State how you determine the useful
life estimate.
(ii) Identify factors that may influence
the useful life of the identified capital
improvement, such as: Marine
environment, wave action, weather
conditions, and heavy usage.
(iii) Examples of sources to obtain
estimates for useful life information
when developing your application are:
Vendors, engineers, contractors, or
others with expertise or experience with
a capital improvement.
(3) Step 3. If you are asking us to
consider additional points for a physical
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§ 86.75
How should I credit BIG?
tkelley on DSK3SPTVN1PROD with RULES2
(a) You must use the Sport Fish
Restoration logo to show the source of
BIG funding:
(b) Examples of language you may use
to credit BIG are:
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(1) A Sport Fish Restoration–Boating
Infrastructure Grant funded this facility
thanks to your purchase of fishing
equipment and motorboat fuel.
(2) A Sport Fish Restoration–Boating
Infrastructure Grant is funding this
construction thanks to your purchase of
fishing equipment and motorboat fuel.
(3) A Sport Fish Restoration–Boating
Infrastructure Grant funded this
pamphlet thanks to your purchase of
fishing equipment and motorboat fuel.
(c) States may ask for approval of
alternative language to follow
ordinances and restrictions for posting
information where the project is located.
§ 86.76
How can I use the logo for BIG?
(a) You must use the Sport Fish
Restoration logo on:
(1) BIG-funded facilities;
(2) Printed or Web-based material or
other visual representations of BIG
projects or achievements; and
(3) BIG-funded or BIG-related
educational and informational material.
(b) You must require a subgrantee to
display the logo in the places and on
materials described at paragraph (a) of
this section.
(c) Businesses that contribute to or
receive from the Trust Fund that we
describe at § 86.30 may display the logo
in conjunction with its associated
products or projects.
(d) The Assistant Director or Regional
Director may authorize other persons,
organizations, agencies, or governments
not identified in this section to use the
logo for purposes related to BIG by
entering into a written agreement with
the user. The user must state how it
intends to use the logo, to what it will
attach the logo, and the relationship to
BIG.
(e) The Service and the Department of
the Interior make no representation or
endorsement whatsoever by the display
of the logo as to the quality, utility,
suitability, or safety of any product,
service, or project associated with the
logo.
(f) The user of the logo must
indemnify and defend the United States
and hold it harmless from any claims,
suits, losses, and damages from:
(1) Any allegedly unauthorized use of
any patent, process, idea, method, or
device by the user in connection with
its use of the logo, or any other alleged
action of the user; and
(2) Any claims, suits, losses, and
damages arising from alleged defects in
the articles or services associated with
the logo.
(g) No one may use any part of the
logo in any other manner unless the
Service’s Assistant Director for Wildlife
and Sport Fish Restoration or Regional
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Director authorizes it. Unauthorized use
of the logo is a violation of 18 U.S.C.
701 and subjects the violator to possible
fines and imprisonment.
§ 86.77
How must I treat program income?
(a) You must follow the applicable
program income requirements at 2 CFR
200.80 and 200.307 if you earn program
income during the period of
performance.
(b) We authorize the following
options in the regulations cited at
paragraph (a) of this section:
(1) You may deduct the costs of
generating program income from the
gross income if you did not charge these
costs to the grant. An example of costs
that may qualify for deduction is
maintenance of the BIG-funded facility
that generated the program income.
(2) Use the addition alternative for
program income only if:
(i) You describe the source and
amount of program income in the
project statement according to
§ 86.43(k)(2); and
(ii) We approve your proposed use of
the program income, which must be for
one or more of the actions eligible for
funding at § 86.11.
(3) Use the deduction alternative for
program income that does not qualify
under paragraph (b)(2) of this section.
(c) We do not authorize the costsharing or matching alternative in the
regulations cited at paragraph (a) of this
section.
(d) For BIG Tier 1-State grants with
multiple projects that you may complete
at different times, we recommend that
States seek our advice on how to apply
for and manage grants to reduce
unintended program income.
(e) If your project is completed before
the end of the period of performance,
we recommend you notify us and ask
for advice on how to adjust the period
of performance to manage potential
program income.
§ 86.78 How must I treat income earned
after the period of performance?
You are not accountable to us for
income earned by you or a subgrantee
after the period of performance as a
result of the grant except as required at
§§ 86.90 and 86.91.
Subpart G—Facility Operations and
Maintenance
§ 86.90 How much must an operator of a
BIG-funded facility charge for using the
facility?
(a) An operator of a BIG-funded
facility must charge reasonable fees for
using the facility based on prevailing
rates at other publicly and privately
owned local facilities similarly situated
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ER06MY15.000
component, technology, or technique
under the criterion at § 86.51(c) that will
increase the useful life, you must
describe in your application:
(i) The capital improvement or
component that you will apply the
criterion at § 86.51(c) to;
(ii) The expected increase in useful
life;
(iii) The sources of information that
support your determination of an
extended useful life; and
(iv) A description of how you expect
the useful life will be increased.
(b) After you submit your application,
but before we award your grant, you
must:
(1) Confirm the useful life for each
capital improvement using a generally
accepted method.
(2) Provide any additional documents
or information, if we request it.
(3) Consult and obtain agreement for
your final useful life determinations at
the State or Regional level, or both.
(4) Revise your application, as
needed, to include the final useful life
determination(s).
(c) If we find before we award the
grant that you are unable to support
your determination of an extended
useful life at § 86.51(c), we will reduce
your score and adjust the ranking of
applications accordingly.
(d) You must finalize useful life in
your grant by one of the following
methods:
(i) State several useful-life
expectations, one for each individual
capital improvement you identified at
paragraph (a)(1) of this section; or
(ii) State a single useful life for the
whole project, based on the longest
useful life of the capital improvements
you identified at paragraph (a)(1) of this
section.
(e) States may decide to use only one
of the methods described at paragraph
(d) of this section for all BIG-funded
projects in their State.
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and offering a similar service or
amenity.
(b) If other publicly and privately
owned local facilities offer BIG-funded
services or amenities free of charge, then
a fee is not required.
(c) If the BIG-funded facility has a
State or locally imposed fee structure,
we will accept the mandated fee
structure if it is reasonable and does not
impose an undue burden on eligible
users.
(d) You must state proposed fees and
the basis for the fees in your grant
application. The information you give
may be in any format that clearly shows
how you arrived at an equitable amount.
§ 86.91 May an operator of a BIG-funded
facility increase or decrease user fees
during its useful life?
(a) An operator of a BIG-funded
facility may increase or decrease user
fees during its useful life without our
prior approval if they are consistent
with prevailing market rates. The
grantee may impose separate restrictions
on an operator or subgrantee.
(b) If the grantee or we discover that
fees charged by the operator of a BIGfunded facility do not follow § 86.90
and the facility unfairly competes with
other marinas or makes excessive
profits, the grantee must notify the
operator in writing. The operator must
respond to the notice in writing, and
either justify or correct the fee schedule.
If the operator justifies the fee schedule,
the grantee and we must allow
reasonable business decisions and only
call for a change in the fee schedule if
the operator is unable to show that the
increase or decrease is reasonable.
tkelley on DSK3SPTVN1PROD with RULES2
§ 86.92 Must an operator of a BIG-funded
facility allow public access?
(a) Public access in this part means
access by eligible users, for eligible
activities, or by other users for other
activities that either support the
purpose of the BIG-funded project or do
not interfere with the purpose of the
BIG-funded project. An operator of a
BIG-funded facility must not allow
activities that interfere with the purpose
of the project.
(b) An operator of a BIG-funded
facility must allow public access to any
part of the BIG-funded facility during its
useful life, except as described at
paragraphs (e) and (f) of this section.
(c) An operator of a BIG-funded
facility must allow reasonable public
access to other parts of the facility that
would normally be open to the public
and must not limit access in any way
that discriminates against any member
of the public.
(d) The site of a BIG-funded facility
must be:
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(1) Accessible to the public; and
(2) Open for reasonable periods.
(e) An operator may temporarily limit
public access to all or part of the BIGfunded facility due to an emergency,
repairs, construction, or as a safety
precaution. (f) An operator may limit
public access when seasonally closed
for business.
§ 86.93 May I prohibit overnight use by
eligible vessels at a BIG-funded facility?
You may prohibit overnight use at a
BIG-funded facility if you state in the
approved grant application that the
facility is only for day use. If after we
award the grant you wish to change to
day use only, you must follow the
requirements at subpart H of this part.
§ 86.94 Must I give information to eligible
users and the public about BIG-funded
facilities?
(a) You must give clear information
using signs or other methods at BIGfunded facilities that:
(1) Direct eligible users to the BIGfunded facility;
(2) Include restrictions and operating
periods or direct boaters where to find
the information; and
(3) Restrict ineligible use at any part
of the BIG-funded facility designated
only for eligible use.
(i) You do not need to notify facility
users of any restrictions for shared-use
areas and amenities that you have
already decided have predictable mixed
use and you have allocated following
§ 86.19.
(ii) You must notify facility users of
benefits that you decide are only for
eligible users, such as boat slips and
moorage.
(b) You may use new technology and
methods of communication to inform
boaters.
Subpart H—Revisions and Appeals
§ 86.100 Can I change the information in a
grant application after I receive a grant?
(a) To change information in a grant
application after you receive a grant,
you must propose a revision of the grant
and we must approve it.
(b) We may approve a revision if:
(1) For BIG Tier 1—State and BIG Tier
2—National awards, the revision:
(i) Would not significantly decrease
the benefits of the project; and
(ii) Would not increase Federal funds.
(2) For BIG Tier 2—National awards,
the revision:
(i) Involves process, materials,
logistics, or other items that have no
significant effect on the factors used to
decide the score; and
(ii) Keeps an equal or greater
percentage of the non-Federal matching
share of the total BIG project costs.
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(c) We may approve a decrease in the
Federal funds requested in the
application subject to paragraph (b) of
this section.
(d) The Regional WSFR Office must
follow its own procedures for review
and approval of any changes to a BIG
Tier 1—State grant.
(e) The Regional WSFR Office must
receive approval from the WSFR
Headquarters Office for any changes to
a BIG Tier 2—National grant that
involves cost or affects project benefits.
§ 86.101
grant?
How do I ask for a revision of a
(a) You must ask for a revision of a
grant by sending us the following
documents:
(1) The standard form used to apply
for Federal assistance, which is
available at https://www.grants.gov. You
must use this form to update or ask for
a change in the information that you
included in the approved grant
application. The authorized
representative of your agency must
certify this form.
(2) A statement attached to the
standard form at paragraph (a)(1) of this
section that explains:
(i) The proposed changes and how the
revision would affect the information
that you submitted with the original
grant application; and
(ii) Why the revision is necessary.
(b) You must send any revision of the
scope to your State Clearinghouse or
Single Point of Contact if your State
supports this process under Executive
Order 12372, Intergovernmental Review
of Federal Programs.
§ 86.102
Can I appeal a decision?
You can appeal the Director’s,
Assistant Director’s, or Regional
Director’s decision on any matter
subject to this part according to 2 CFR
200.341.
(a) You must send the appeal to the
Director within 30 calendar days of the
date that the Director, Assistant
Director, or Regional Director mails or
otherwise informs you of a decision.
(b) You may appeal the Director’s
decision under paragraph (a) of this
section to the Secretary of the Interior
within 30 calendar days of the date that
the Director mailed the decision. An
appeal to the Secretary must follow
procedures at 43 CFR part 4, subpart G,
‘‘Special Rules Applicable to Other
Appeals and Hearings.’’
§ 86.103 Can the Director authorize an
exception to this part?
The Director can authorize an
exception to any requirement of this
part that is not explicitly required by
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law if it does not conflict with other
laws or regulations or the policies of the
Department of the Interior or the Office
of Management and Budget (OMB).
Subpart I—Information Collection
§ 86.110 What are the informationcollection requirements of this part?
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OMB has reviewed and approved the
U.S. Fish and Wildlife information
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collection requirements (project
narratives, reports, and amendments) in
this part and assigned OMB Control No.
1018–0109. We may not conduct or
sponsor and a person is not required to
respond to a collection of information
unless it displays a currently valid OMB
control number. You may send
comments on any aspect of the
information collection requirements to
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the Service Information Collection
Clearance Officer at the address
provided at 50 CFR 2.1(b).
Dated: April 21, 2015.
Michael Bean,
Principal Deputy Assistant Secretary for Fish
and Wildlife and Parks.
[FR Doc. 2015–09961 Filed 5–5–15; 8:45 am]
BILLING CODE 4310–55–P
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[Federal Register Volume 80, Number 87 (Wednesday, May 6, 2015)]
[Rules and Regulations]
[Pages 26149-26174]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-09961]
[[Page 26149]]
Vol. 80
Wednesday,
No. 87
May 6, 2015
Part II
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 86
Boating Infrastructure Grant Program; Final Rule
Federal Register / Vol. 80 , No. 87 / Wednesday, May 6, 2015 / Rules
and Regulations
[[Page 26150]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 86
[Docket No. FWS-R9-WSR-2011-0083; FVWF941009000007B-XXX-FF09W11000]
RIN 1018-AW64
Boating Infrastructure Grant Program
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are revising
regulations governing the administration of the national Boating
Infrastructure Grant Program (BIG). We published a proposed rule in the
Federal Register on March 28, 2012. We received responses from the
public during the 60-day comment period with recommendations for
changes, support for certain parts of the proposed rule, and requests
for more time to review the proposed rule. We published a second
proposed rule in the Federal Register on April 25, 2014, with a 90-day
comment period. The final rule simplifies and clarifies some sections,
responds to comments on both proposed rules, and considers other
approaches to carrying out this grant program.
DATES: The final rule is effective on June 5, 2015.
FOR FURTHER INFORMATION CONTACT: Lisa E. Van Alstyne, Wildlife and
Sport Fish Restoration Program, Division of Policy and Programs, U.S.
Fish and Wildlife Service, 703-358-1942.
SUPPLEMENTARY INFORMATION:
Executive Summary
The Sportfishing and Boating Safety Act of 1998 established the
Boating Infrastructure Grant Program (BIG). The Fish and Wildlife
Service carries out the program through regulations published at 50 CFR
part 86. The regulations establish a process for States, the District
of Columbia, Commonwealths, and territories (States) to receive grants
by proposing projects to construct and maintain facilities for
transient recreational vessels at least 26 feet long. There are two
subprograms in BIG. BIG Tier 1--State competes on the State level for
eligible projects, and BIG Tier 2--National competes on a national
level for eligible projects. Examples of eligible costs are floating
docks, piers, navigational aids, boat slips, limited dredging, and
restrooms.
BIG receives its funding from 2 percent of the annual appropriation
from the Sport Fish Restoration and Boating Trust Fund. The Trust Fund
receives revenue from: (a) Taxes on sport fishing equipment, electric
outboard motors, and sonar devices; (b) taxes on special motorboat
fuels and gasoline attributable to motorboats and nonbusiness use of
small power equipment; and (c) import duties on fishing tackle, yachts,
and pleasure craft. In FY 2015, the Service awarded over $14.3 million
to States for eligible projects.
This BIG final rule is the first comprehensive update since 2001.
In developing this rule, we considered the recommendations of the 2005
review of BIG published by the Sport Fishing and Boating Partnership
Council, a Service Federal Advisory Committee. We actively worked with
the Council and our other partners, such as the States Organization for
Boating Access, BoatUS, States, and the boating public.
Background
This final rule revises title 50, part 86 of the Code of Federal
Regulations (CFR), which is ``Boating Infrastructure Grant (BIG)
Program.'' The primary users of these regulations are agencies in 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.
These regulations tell States how they may apply for and use funds
from the Sport Fish Restoration and Boating Trust Fund that are
dedicated by law to BIG (Dingell-Johnson Sport Fish Restoration Act, 16
U.S.C. 777c, g, and g-1).
The Catalog of Federal Domestic Assistance at https://www.cfda.gov
describes BIG under 15.622. BIG offers grants in two subprograms, BIG
Tier 1--State and BIG Tier 2--National, to construct, renovate, and
maintain boating infrastructure facilities for transient recreational
vessels at least 26 feet long.
We published a proposed rule for BIG in the Federal Register on
March 28, 2012 (77 FR 18767), with a 60-day comment period ending May
29, 2012. We received 22 responses from the public. Fifteen included
comments applicable to the proposed rule and 11 included requests for
more time to review the proposed rule. We responded to comments and
published a second proposed rule in the Federal Register on April 25,
2014 (79 FR 23210), with a 90-day comment period ending July 24, 2014.
We received 13 responses to the proposed rule published at 79 FR
23210. Some of the comments we received support our changes or
approaches and others recommend further changes or considerations. A
few comments requested more information or explanation.
We address these comments in the following section.
Response to Public Comments
We arrange the public comments by sections of the proposed rule. We
do not duplicate a response we give in one section in another section.
We do not present comments exactly as stated unless we enclose text
within quotation marks. In many instances, we combine several similar
comments and show as a single comment. We state in the response to each
comment any action taken and explain our response. Some public comments
led us to reexamine sections or approaches beyond the specific public
comment. Based on this reexamination, we make changes to improve
clarity, consistency, organization, or comprehensiveness.
We make some changes for clarification and uniformity that we do
not specifically discuss. We do not explain minor changes that do not
significantly affect content. We discuss any substantive changes that
resulted from this reexamination in our responses to the comments. We
use the word grantee in our responses to refer to a State that receives
a BIG award. It may also apply to a subgrantee with which a State
agency has a formal agreement to construct, operate, or maintain a BIG-
funded facility.
The regulations at 2 CFR part 200, Uniform Administrative
Requirements, Cost Principles, and Audit Requirements for Federal
Awards (78 FR 78590, December 26, 2013), became effective for Federal
grants on December 26, 2014. Many citations within this regulation have
been updated to reflect the current authority. The term grant period is
replaced with the term period of performance at 2 CFR 200.77 and we
reflect that change in both the Response to Public Comments and the
body of the rule.
We use the term proposed rule to refer to the proposed rule
published in the Federal Register at 79 FR 23210, April 25, 2014.
We include all sections of the proposed rule and indicate if we
received no comments.
Subpart A--General
Section 86.1 What does this part do?
In this section, we introduce the terms BIG Standard and BIG Select
to identify the subprograms in BIG. We consider
[[Page 26151]]
the terms Tier 1 and Tier 2 in the current rule as bureaucratic and
nondescriptive of the BIG subprograms, so we proposed different names.
We received many comments and some suggestions for alternative
subprogram names. Most commenters stated that since the program has
been active for so long, a major change would be confusing to those
routinely interacting with the program. Some States noted that they
have developed materials that use the current subprogram names and they
would have to recreate those materials if we were to implement new
subprogram names. To compromise between the commenters' desire to keep
the familiar Tier designations and our desire to make the names more
explanatory, we accept a combination of suggested subprogram naming and
designate the subprograms as BIG Tier 1--State and BIG Tier 2--
National. Adding the terms State and National reflects the level at
which grants are competed. Continued use of Tier 1 and Tier 2 supports
familiarity and allows for States to use printed materials on hand,
changing to add the new subprogram naming as is practical and
convenient for them.
Section 86.2 What is the purpose of BIG?
We received one comment supporting our statement of the purpose of
BIG. The commenter said that ``the proposed rules are consistent with
that mission'' and he commends the Service for continuing to focus on
such facilities.
Section 86.3 What terms do I need to know?
We received one comment supporting our clarification of day dock
use.
General
Comment 1: Clarify that the grant for a BIG-funded facility
includes both Federal funds plus matching funds.
Response 1: We make no change based on this comment. The definition
of grant includes this information.
Comment 2: Recommend adding definitions for grantee and subgrantee
to help applicants understand their role in the overall rule.
Response 2: We make no change based on this comment. Section 86.1
distinguishes between a grantee and a subgrantee.
Comment 3: Add the term subgrantee and include a description of the
wide range of potential subgrantees to include educational
institutions.
Response 3: We make no change to definitions based on this comment
and refer to Response 2. We do add institutions of higher education to
the list of potential subgrantees at Sec. 86.17(b).
Comment 4: Add award to the terms and define it as different from a
grant.
Response 4: We make no change based on this comment. We make minor
changes to the definition of grant to better reflect the definition at
2 CFR 200.51. The term Federal award at 2 CFR 200.38 refers to several
types of financial assistance. To define award may cause confusion.
Capital Improvement
Comment 5: Clarify what you mean by repairing. Does capital
improvement include routine operation and maintenance?
Response 5: We make no change based on this comment. The word
repairing is a common term and is clear in that it means to restore an
existing structure to serve an intended purpose. Capital improvement
does not include operation or maintenance in that a capital improvement
must increase the structure's useful life by 10 years or cost at least
$25,000.
Comment 6: What is the basis for using $25,000 as a cap in the
definition of capital improvement?
Response 6: We make no change based on this comment. There is not a
$25,000 cap in the definition of capital improvement. Rather, it is a
minimum threshold based on the amount in 49 CFR part 24 above which a
grantee must get an appraisal before acquiring real property in a WSFR-
administered program. In the coming years, we will change other
regulations to reflect this value.
Contractor/Concessioner
Comment 7: We received several comments stating that the term
contractor was unclear and used inconsistently with the typical
understanding of the term.
Response 7: We agree and change the term to concessioner. We
expanded on the definition to clarify intent.
Facility
Comment 8: Recommend changing the word boaters to eligible users.
Response 8: We make no change based on this comment. The definition
of BIG-funded facility is specific to eligible users, but the
definition of facility is broader and applies to all boaters.
Comment 9: Clarify that a facility can be owned by one entity, but
leased long-term to another to operate and manage.
Response 9: We make no change based on this comment. We discuss
that an entity other than the owner may operate a facility in the
definition of concessioner and at Sec. 86.17.
Grants.gov
We received one comment asking us to clarify to subgrantees that
States must apply for BIG funds through https://www.grants.gov. Upon
further consideration, we add the definition of grants.gov at Sec.
86.3 to improve clarity in the rule.
Maintenance
We received several comments supporting our definition of
maintenance and making maintenance an allowable action for BIG Tier 1--
State grants.
Comment 10: Suggest you give clarification for janitorial
activities in the definition of maintenance.
Response 10: We make no change to the definition, but clarify at
Sec. 86.16 actions we identify as janitorial.
Comment 11: The examples in the definition of maintenance numbered
(1) Lubricating components of BIG-funded equipment and (3) Painting,
pressure washing, and repointing masonry seem to be janitorial in
nature and not maintenance.
Response 11: We make no change based on this comment. The examples
given at (1) and (3) are maintenance actions that are done on an
occasional or cyclical basis to help maintain the equipment and
structures that are part of the BIG-funded facility.
To clarify our approach, maintenance is focused on preserving the
equipment and structures for use into the future. Operations are done
on a daily or weekly cycle (more often than cyclical maintenance) and
are actions that support the availability of the equipment and
structures for current public use.
Navigable Waters
Comment 12: Clarify in the definition if the waterway is supposed
to connect to another waterway to give cruising linkage, or if the
intent is to open the waterways definition to include large water
bodies that do not give linkage to another waterway.
Response 12: We clarify the definition to mean passage of eligible
vessels within the water body. To be navigable water for the purposes
of BIG, we do not require the water body to have a navigable passage to
another water body. However, the water body must be large enough to
support eligible vessel travel within the water body.
Operation
Comment 13: What does service labor mean?
Response 13: We change the term to service worker. This means
anyone whose job duties are to offer services to
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the public. Some examples of service workers are dock hands, rest room/
shower attendants, and travel assistants.
Personal Property
Comment 14: Suggest you give examples of personal property that
would be eligible as match as described at Sec. 86.32(b). Are there
any limits to the types of personal property that would be eligible as
match? Allowing personal property as match seems to be in conflict with
Sec. 86.32(c)(2) that states match must be an eligible activity or
cost, but personal property is not listed as an eligible action at
Sec. 86.11.
Response 14: We make no change based on this comment. We do not
give a list of examples of personal property in the definition because
the possibilities are so extensive, it may be perceived as limiting.
Personal property must meet the criteria for match at Sec. 86.32 and
must support the BIG-funded project and the eligible actions or costs
of the BIG-funded project. Personal property is basically anything that
is not real property, and as real property has very limited eligibility
in BIG, the majority of actions and costs for a BIG-funded project will
involve personal property. Personal property in a BIG-funded project
may include equipment, building materials, supplies, and many other
items.
Project Cost
Comment 15: Recommend rewording to state, ``the Federal Share
awarded through the BIG Grant and all Match given that the award is
contingent upon combining the two items to complete the Project.''
Response 15: We make no change based on this comment. The
definition we give is clear and consistent with the definition at other
regulations.
Program Income
Comment 16: Does the reference to period of performance include
useful life?
Response 16: No. A period of performance begins with the grant
start date and ends with the grant end date. All costs for work
performed are incurred during the period of performance. The period of
useful life extends past the period of performance. We make no change
based on this comment.
Real Property
Comment 17: In the examples of real property, suggest removing the
term fixed dock and replacing it with permanent dock.
Response 17: We make no change based on this comment. The word
fixed supports that the dock is physically and firmly attached to land.
Transient
We received a comment supporting that in the proposed rule we
clarify day dock usage.
Comment 18: Recommend that the definition of ``transient'' be
increased to 30 days to allow increased flexibility for long-distance
travelers.
Response 18: We received comments in prior reviews asking us to
consider increasing the time allowed in the definition of transient. We
reconsidered all comments on the subject and change the definition of
transient to include a stay up to 15 days. This will allow for eligible
boaters to arrange for a 2-week stay, which is a more typical visit
than 10 days, and gives one-day flexibility for arrival and departure.
Comment 19: Clarify if an eligible vessel staying at a large water
body that is not navigably connected to another water body must be
removed from the water at the end of the transient period.
Response 19: We make no change based on this comment. Transient
defines the period a recreational vessel at least 26 feet long may stay
at any single BIG-funded facility to be an eligible vessel. We make no
additional restrictions.
Useful Life
Comment 20: Recommend replacing routine care with operation in this
definition.
Response 20: We make no change based on this comment. Routine care
is broader and includes operation, best management practices, enforcing
marina rules and regulations, and other actions that together add to
the care of BIG-funded items.
Subpart B--Program Eligibility
Section 86.10 Who may apply for a BIG grant?
Comment 21: The same commenter suggested at several sections of
this rule that we change our grant process to allow individual public
and private facility owners to circumvent the State and directly apply
for BIG grants. He suggests that States may continue to be advisors,
but there is a large burden on States when named as the applicant for
all BIG projects. The response below applies to all related comments.
Response 21: We make no change based on this comment. Limiting BIG
awards to States is based on the statute that established the program
(see Pub. L. 105-178, sec. 7404(a) and (d), June 9, 1998).
Section 86.11 What actions are eligible for funding?
We received several comments that support eligible actions in the
proposed rule and one that specifically supports using BIG funding for
monitoring BIG projects.
Comment 22: We received a comment supporting our proposed language
that boat wash stations are ineligible for funding and another
requesting we reconsider allowing boat wash stations as eligible under
BIG. One commenter supports boat wash stations as an eligible action,
stating that they are used in saltwater environments to prepare the
bottom surfaces of transient vessels for boat repairs and to improve
performance.
Response 22: We make no change and do not include boat wash
stations as eligible because:
Boat wash stations require that boats be removed from the
water to accomplish the desired results. This is potentially an
auxiliary service to transient boaters on rare occasions, but not a
primary benefit for transient vessels.
We do not include other equipment to repair and maintain
vessels as eligible for BIG funding.
States may seek to fund boat wash stations under the Dingell-
Johnson Sport Fish Restoration Recreational Boating Access subprogram
as described at 50 CFR part 80.
Comment 23: Add recording fees as an eligible action as this will
be required when we record the Notice of Federal Participation as
described at Sec. 86.18.
Response 23: We agree and make the change.
Comment 24: Consider adding at Sec. 86.11(a)(2)(i) cultural to
formally include those studies as eligible.
Response 24: We agree and make the change.
Comment 25: Recommend adding at Sec. 86.11(a)(5)(vi), a reference
that directs readers to the definition of marketing.
Response 25: We make no change based on this comment. The rule has
a definition of public communication and adding a reference to
marketing in this paragraph may be confusing.
Comment 26: In reference to Sec. 86.11(a)(6) [(a)(7) in the final
rule], can actions such as coordinating and monitoring be used as match
for a BIG Tier 2--National grant or is it allowed only under BIG Tier
1--State grants?
Response 26: We make no change based on this comment. These actions
may be offered as match when approved as project costs for an
individual BIG Tier 2--National grant project and
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completed during the period of performance. These actions may be
associated with implementing a Statewide BIG program and may be offered
as match under BIG Tier 1--State.
Comment 27: What is the process for requesting and receiving prior
approval for preaward costs? How far in advance can preaward costs be
approved?
Response 27: We make no change based on this comment. We will
consider approving preaward costs only if an applicant negotiates with
us in anticipation of the BIG award where such costs are necessary for
efficient and timely performance of the scope of work. Such costs are
allowable only to the extent that they would have been allowable if
incurred during the BIG period of performance and only with our written
approval. The applicant assumes all risk and we will not reimburse the
preaward costs if it does not receive a BIG grant. An applicant should
discuss possible preaward costs with us as early in the process as
possible.
Section 86.12 What types of construction and services does boating
infrastructure include?
Comment 28: Recommend adding dredging.
Response 28: We make no change based on this comment. Dredging is
an action and not infrastructure.
Comment 29: Recommend adding floating restrooms as possible
infrastructure.
Response 29: Floating restrooms are already included at Sec.
86.12(e). We make a minor clarifying change.
Comment 30: Why do you include access to communication and
provisions in the definition of harbor of safe refuge?
Response 30: We make no change based on this comment. Our research
indicates that a harbor of safe refuge includes these amenities that
support vessels during an emergency.
Comment 31: Suggest at Sec. 86.12(e) you refer to Sec. 86.11(c)
and encourage Clean Vessel Act funding.
Response 31: We make no change based on this comment. This section
describes what is included in boating infrastructure. We would confuse
readers to include funding information here.
Section 86.13 What operational and design features must a facility have
where a BIG-funded facility is located?
We received a comment that supports the change in the proposed rule
that no longer requires operators to inform boaters of the location of
other pumpouts. We also received a comment supporting flexibility in
water access.
Comment 32: Clarify how security and safety is a required
operational and design feature, but law enforcement is not an eligible
action.
Response 32: We make no change based on this comment. Law
enforcement is inconsistent with the authorizing legislation (Pub. L.
105-178, June 9, 1998) and is not an eligible action. The type of
security and safety that a BIG-funded facility must offer is consistent
with the mission of BIG in that it offers reasonable accommodations
that give eligible users basic protection. Examples are: Lighting,
gates, and communication.
Comment 33: Move items at Sec. 86.43(n) to this section as it
applies to operation and design and not what to include in a grant
application.
Response 33: We agree and move much of the information at Sec.
86.43(n) to Sec. 86.13(b)(1) through (4).
Comment 34: The reference to depth requirements is confusing.
Recommend having docking or mooring sites with water access at least 6
feet deep at mean low tide in tidal waters or a minimum of 6 feet in
nontidal waters.
Response 34: We make no change based on this comment. We are asking
applicants to consider the water conditions at the proposed site of the
BIG-funded facility and any reasons for potential depth fluctuation
that could affect access by eligible vessels. We do not wish to limit
this consideration to tidal or nontidal influences, but to consider
natural influences and those created by human activity.
Section 86.14 How can I receive BIG funds for facility maintenance?
We received a comment supporting the flexibility for States to use
BIG Tier 1--State funding for maintenance. We received a comment asking
us to clarify how to extend useful life when BIG funds are used for
maintenance at a facility that has received a BIG grant in the past. We
clarify that a grantee must extend the useful life of the capital
improvements affected by the maintenance, as appropriate.
Section 86.15 How can dredging qualify as an eligible action?
We received a comment supporting our approach for dredging and
dredging-related actions in BIG.
Comment 35: Suggest that the amount of the total BIG grant the
Service will allow for dredging be increased from 10 percent to 20
percent.
Response 35: In the proposed rule we allowed using BIG funds for
dredging if costs for dredging-related actions do not exceed 10 percent
of total BIG project costs or $200,000, whichever is less. After
further consideration, we remove the 10 percent limit and will allow
dredging costs up to $200,000 for both BIG Tier 1--State and BIG Tier
2--National grants.
Comment 36: Change the term basin to area used by eligible users.
Response 36: We make no change based on this comment. The
regulations limit the amount of BIG funds available for dredging and
eliminate the need for allocating funds to only eligible users.
Comment 37: Recommend changing Sec. 86.15(b)(1) from lowest tide
to mean low water.
Response 37: We remove the term at Sec. 86.15(b)(1) and substitute
a reference to Sec. 86.13(a)(6) for the language that the commenter
finds confusing.
Comment 38: Recommend deleting the requirement at Sec. 86.15(d) as
it is unnecessary and will likely require a new form.
Response 38: We make no change based on this comment. We include
this paragraph in response to concerns from prior and current comment
periods for a method or directive to ensure that grantees maintain a
dredged area. A new form will not be necessary. When a State signs the
Standard Form 424B or 424D it certifies that it will follow all
regulations.
Comment 39: Recommend adding language at Sec. 86.15(d) to allow
flexibility for responding to unusual circumstances that affect water
level.
Response 39: We add ``under typical conditions'' to indicate that
we will consider flexibility under extraordinary factors that affect
water level.
Comment 40: Is dredging eligible only at a facility that has
received BIG funds in the past?
Response 40: No. Dredging is an eligible action. As with all other
eligible actions, there is no requirement to have received a prior
grant. We make no change based on this comment.
Section 86.16 What actions are ineligible for BIG funding?
We received comments that agree with the concepts in this section,
specifically that we list land as an ineligible cost.
Comment 41: Clarify the difference between:
The ineligible action at Sec. 86.16(a)(8)(ii) General
marina or agency newsletters or Web sites promoting the marina or
agency; and
The eligible action at Sec. 86.11(a)(5)(iv) Marina
newsletter articles, marina or agency Web pages, and other
communications you produce
[[Page 26154]]
that are directly related to the BIG-funded project.
Response 41: We make no change based on this comment. The
difference is that the eligible action at Sec. 86.11(a)(5)(iv) is
specific to and directly supports the BIG-funded project. The
ineligible action at Sec. 86.16(a)(8)(ii) is general in nature and
focused primarily on the marina or agency apart from the BIG project or
program. If a marina or agency includes specific BIG-funded project or
BIG program information in any general agency communications, it may
allocate the information and education costs accordingly.
Comment 42: Suggest you revise Sec. 86.16(a)(5) to clarify that
roads and parking lots and possibly other land surface improvements may
be funded with BIG if there is damage to the surface as a result of
completing the BIG project.
Response 42: We clarify at Sec. 86.11(a)(1) that repairing or
restoring roads, parking lots, walkways, and other surface areas
damaged as a direct result of BIG-funded construction is an eligible
action. This must be limited only to the surface that receives the
damage and a reasonable surrounding distance needed to insure the
public can safely travel on the surface.
Comment 43: Remove the word facilities at Sec. 86.16(a)(6) as it
may create confusion when interpreting definitions at Sec. 86.3.
Response 43: We agree and make the change.
Comment 44: Clarify the differences between maintenance and
janitorial duties at Sec. Sec. 86.3 and 86.16.
Response 44: We make no change at Sec. 86.3 based on this comment.
We clarify Sec. 86.16(a)(2) by giving examples of possible janitorial
duties.
Section 86.17 Who must own the site of a BIG-funded facility?
Comment 45: What documentation would a grantee need from a
subgrantee that does not own the site of a BIG-funded facility to show
it follows Sec. 86.17(a)?
Response 45: We make no change based on this comment. We state in
Sec. 86.17(a) that any entity that does not own the site of a BIG-
funded project must have a contractual arrangement showing that it, or
the owner, will operate the BIG-funded facility for the useful life.
The contractual arrangement must convey grant responsibilities to a
subgrantee or operator and it must be acceptable to the State. The
documentation will become part of the application when we award the
grant. If the owner signs the grant, there is no need for additional
documentation.
Comment 46: Clarify that State agencies other than the agency
receiving the grant may be subgrantees.
Response 46: We agree and change the section to clarify this.
Comment 47: May Federal agencies, corporations, companies, and
partnerships qualify as subgrantees?
Response 47: We make no change based on this comment. Corporations,
companies, and partnerships that we will accept as subgrantees are
either commercial enterprises or nonprofit organizations and are
already listed as eligible subgrantees. A Federal agency may
participate as a landowner that has a contractual relationship with a
State subgrantee or through a reimbursable agreement. However, a
Federal agency cannot be a subgrantee.
Comment 48: Remove the requirement that subgrantees that are
commercial enterprises are subject to future regulations.
Response 48: We agree and removed Sec. 86.17(c)(2) because we are
uncertain how future regulations will be applied. We retain information
at Sec. 86.17(c)(1) as Sec. 86.17(c) to remind grantees and
subgrantees that businesses have other Federal requirements they must
follow.
Section 86.18 How can I ensure that a BIG-funded facility continues to
serve its intended purpose for its useful life?
We received comments that support this section.
Comment 49: What does the word ``record'' mean at Sec. 86.18(b)?
Response 49: We make no change based on this comment. Recording
means entering into a book of public records the written instruments
affecting the grant interest in the real property it is located on.
Recording with reference to the deed notifies all interested parties of
the grantee's continuing responsibility to manage the BIG-funded
facility for the purposes of the grant.
Comment 50: When would we know if a Notice of Federal Participation
is required?
Response 50: We make no change based on this comment. A grantee
must record a Notice of Federal Participation for all projects
according to guidance from your Regional Office. We may, in
consultation with a State, conclude that the project is too small to
justify the cost of recording. If we approve that approach, the grantee
is not required to record the interest for that project. Even if we
tell the grantee we do not require them to record the interest, a State
may choose to record it, or require its subgrantee to record it.
Comment 51: You should not require recording of the Federal
interest after applications are received. Adding these requirements
later can jeopardize partner relationships.
Response 51: We make no change based on this comment. We clarify
this section based on other comments. It is the State's responsibility
to direct potential subgrantees to these regulations or otherwise alert
them to this and other potential obligations, compliance requirements,
and future responsibilities.
Section 86.19 What if a BIG-funded facility would benefit both eligible
and ineligible users?
We received comments supporting the changes that allow us to work
with a grantee to correctly allocate costs after the application is
received, but before we consider the application for award. We remove
Sec. 86.19(b) as it restates information in the opening paragraph. We
renumber Sec. Sec. 86.19(c) through (h) as Sec. Sec. 86.19(b) through
(g).
Comment 52: Remove assigning ``100 percent'' of the project costs
as it is confusing.
Response 52: We define ``project cost'' at Sec. 86.3 as the
combination of the Federal share and the matching share. However, in
the interest of clarity we rephrase to state ``all eligible project
costs'' instead of ``100 percent.''
Comment 53: Change Sec. 86.19(c) [now Sec. 86.19(b)] so that
applicants must properly allocate funds before the due date. The
breakdown on allocated costs must be shown at the time of the
application and not when the Director announces the award. Applications
for BIG Tier 2--National grants cannot be reviewed and ranked without
appropriate information.
Response 53: We make changes to clarify this paragraph. We expect
that applicants will read both the regulations and the Notice of
Funding Opportunity (NOFO) and make good faith efforts to appropriately
allocate funds in their applications. However, we do not wish to reject
an application simply for an error or misinterpretation in allocating
funds. We include this paragraph so that we have the flexibility to
work with the applicant before the award to resolve any problems.
Paragraph (a) of this section clearly states that we expect an
applicant to show and explain in the application the breakdown of costs
and reasoning behind the cost allocation. We change paragraph (c) to
clarify that after the application due date, we may work with
applicants to resolve any issues. However, we must approve how an
applicant allocates funds before we will
[[Page 26155]]
consider the application for a possible award.
Comment 54: Recommend you refer to Sec. 86.43(i) at Sec.
86.19(a)(2) of this section to link the two sections.
Response 54: We agree and insert the reference.
Comment 55: The example at Sec. 86.19(d)(1) [now Sec.
86.19(c)(1)] should have costs allocated between eligible and
ineligible uses. Marinas may intentionally design or relocate uses to
take advantage of BIG funding and also get a secondary benefit.
Response 55: We make no change based on this comment. An
application must clearly state the primary purpose of the project and
justify the approach. If BIG-eligible projects have a secondary use
that does not interfere with the primary purpose, there is no loss to
the program objectives.
Comment 56: The exception at Sec. 86.19(d)(3) [now Sec.
86.19(c)(3)] could be problematic. For example, a gangway with an
estimated cost of $4,500 does not have to allocate funds between
eligible and ineligible uses. What happens if the gangway goes to bid
and comes in costing $10,000? The first expectation was that the BIG
grant would cover 100 percent of the costs; in the second, the BIG
grant covers only 90 percent of the costs, leaving $1,000 for the
applicant to give as additional match. On top of that, would the
$10,000 have to be allocated between eligible and ineligible uses after
the fact?
Response 56: We make no change based on this comment. We include
this section to reduce the burden of allocating costs for components of
the BIG-funded project that have relatively little value. Section
86.19(d)(3) [now Sec. 86.19(c)(3)] states that each year we will post
the minimal value in the annual NOFO based on the formula as applied to
the maximum award we offer that year. If the maximum award (Federal
plus match) is $2 million, applying the formula will allow States to
forego allocating costs for a component with a value of $5,000 or less.
In the scenario given in the comment, the total estimate for the
gangway is $4,500, which means the grantee will receive $3,375 in BIG
funding and give $1,125 in non-Federal match. After the grant is
awarded, if the actual cost of an item is $5,500 more than originally
projected, the grantee must pay the extra cost from a non-Federal
source. If an applicant does not allocate costs for an item because the
estimated value is below the threshold and later finds the actual cost
exceeds that value, it must contact the Regional Office. The Regional
Office will inform the applicant or grantee if it must assume
additional costs to compensate for ineligible use. Regardless of
whether an applicant chooses the option at Sec. 86.19(c)(3), if the
cost of a component is more than twice the original estimate, the
grantee will incur additional, unexpected costs.
It is always an option for the applicant to choose to allocate
costs for all components of the grant, regardless of the value. We
offer the option at Sec. 86.19(c)(3) as an alternative, but applicants
do not have to use it.
Subpart C--Federal Funds and Match
We received a comment supporting all amendments and additions to
this subpart.
Section 86.30 What is the source of BIG funds?
No comments received.
Section 86.31 How does the Service know how much money will be
available for BIG grants each year?
No comments received.
Section 86.32 What are the match requirements?
Comment 57: Recommend you change the word ``State'' at Sec.
86.32(a) to ``you'' to reflect the convention stated at Sec. 86.1(b).
Response 57: We agree and make the change.
Section 86.33 What information must I give on match commitments, and
where do I give it?
We received comments supporting the changes and specifically for
removing the requirement for all match providers to produce a letter of
commitment.
Section 86.34 What if a partner is not willing or able to follow
through on a match commitment?
We received a comment supporting this section.
Subpart D--Application for a Grant
Section 86.40 What are the differences between BIG Standard (now BIG
Tier 1--State) and BIG Select (now BIG Tier 2--National) grants?
Comment 58: We received several comments supporting the flexibility
to increase annual BIG Tier 1--State funding. We also received comments
that stated their support is contingent on adequate funds for BIG Tier
2--National projects.
Response 58: We agree that flexibility for larger funding amounts
through Tier 1--State grants will allow States to plan smaller projects
that could not successfully compete for Tier 2--National funds, but are
beneficial to eligible users. We revised this section to assure States
they will receive funding for requests up to $200,000 annually. We also
add that we may increase the annual award a State may request if there
are enough funds available and it is advantageous to the program. This
will allow us to be flexible in awarding funding during the award
period and potentially during the funding year, if we determine it is
in the best interest of BIG.
Comment 59: Recommend that flexibility for awarding BIG Tier 1--
State be considered only if BIG Tier 2--National applications do not
exceed available funds in a given fiscal year. The BIG Tier 1--State
NOFO should be posted after BIG Tier 2--National applications are
received and after consulting with stakeholders.
Response 59: We make no change based on this comment. We adjust
this section as discussed in Response 58, but the availability of BIG
Tier 1--State funds will not depend on how much remains after the BIG
Tier 2--National selections are made. We want to assure States they
will have adequate BIG funding to maintain a viable program and to plan
for needed actions. However, we will retain the flexibility to limit
initial BIG Tier 1--State awards to $200,000 and have the flexibility
to consider adding requested BIG funds above this threshold later
during the funding year if additional funds are available.
Comment 60: If you are considering more than a 20 percent increase
in the minimum funding for BIG Tier 1--State, you should first seek
stakeholder input.
Response 60: We make no change based on this comment. However, we
will consider consulting with our partners on possible approaches for
implementing future annual changes.
Section 86.41 How do I apply for a grant?
Comment 61: You should inform subgrantees in the regulations that
the State will send in their applications through https://www.grants.gov.
Response 61: We add the definition of grants.gov at Sec. 86.3 and
state that we require States to use https://www.grants.gov to apply for
BIG grants.
Comment 62: Clarify at Sec. 86.41(b) that the term ``certify''
means to sign.
Response 62: We make no change based on this comment. Certifying by
an authorized State representative may be done electronically or by
other means in the future. We will inform applicants of acceptable ways
to certify in the annual NOFO.
[[Page 26156]]
Comment 63: Clarify that the agency eligible to apply for a BIG
grant must be the one designated by the Governor and not a specific
State agency.
Response 63: We make no change based on this comment. It is clear
at Sec. 86.10 that only one agency in each State may apply for BIG and
the officials who may designate that agency in your State.
Comment 64: Switch Sec. 86.41(b) and (c) to reflect that the form
must be certified before submitting the grant application.
Response 64: We agree and make the recommended change.
Section 86.42 What do I have to include in a grant application?
Comment 65: Remove ``budget information'' from the list of items
required in a grant application as it is already required at Sec.
86.43 under project statement.
Response 65: We agree and removed budget information from the list
of required items. We also clarify by adding a reference to Sec. 86.43
in this paragraph.
Comment 66: Delete paragraph (c) as it refers to what is needed
after the award. Recommend adding this to Sec. 86.61.
Response 66: We agree and clarify this section to reflect what an
applicant must include at the time of application. We refer to Sec.
86.61 for additional requirements that will become part of the
application after we approve the project.
Section 86.43 What information must I put in the project statement?
Comment 67: This section is burdensome for applicants, some with
minimal grant experience, and requires unnecessary information.
Recommend clarifying or changing to indicate additional information
would be required once the project is selected for funding.
Response 67: We make no change based on this comment. The commenter
did not state what parts of this section are burdensome. The State is
the applicant and should work with potential subgrantees to develop the
project statement. The information required in the project statement is
standard for most grant programs. It is also necessary to determine
allowability of costs and to rank applications in a competitive grant
program.
Comment 68: The requirement to add names and qualifications of
known contractors is burdensome at the application stage.
Response 68: We change the term contractor to concessioner at Sec.
86.43(e)(2). We ask an applicant to give information in an application
on known or anticipated concessioners or subgrantees. If an applicant
has not identified concessioners or subgrantees in the application, it
must inform us of this and be ready to respond to our requests for this
additional information following Sec. 86.42(c).
Comment 69: Combine this section with the criteria at Sec. Sec.
86.51 through 86.60 to simplify preparing and reviewing applications.
Response 69: We make no change based on this comment. The project
statement is required for both BIG Tier 1--State and BIG Tier 2--
National applications. The criteria at Sec. Sec. 86.51 through 86.60
are applied only to BIG Tier 2--National applications. It would be
confusing to those applying for a BIG Tier 1--State grant to include
criteria with the project statement. We will consider giving
nonregulatory assistance to BIG Tier 2--National applicants to help
them include criteria in their project statements.
Comment 70: This section appears to be solely for the purpose of
aligning with WSFR's project reporting system, Wildlife Tracking and
Reporting Actions for the Conservation of Species (TRACS). Clarify the
content and reduce redundancy.
Response 70: We make no change based on this comment. A project
statement (called a program narrative statement) was required by Office
of Management and Budget (OMB) Circular No. A-102 and is supported by 2
CFR part 200, Sec. 200.210 and appendix I to part 200. We give further
details in this rule to help applicants give us the information we need
to make informed decisions for funding. We use many terms that
correlate to the TRACS performance reporting system to reduce confusion
when completing those reports.
Comment 71: One commenter suggested alternative language for this
section.
Response 71: We do not make any suggested change that applies only
to BIG Tier 2--National, or that is a minimal change that does not
significantly improve the final rule. We appreciate the examples and
additional information the commenter presents and will consider them
for future nonregulatory guidance. We did not use the word
``engineering'' in discussing the approach because we do not want to
confuse applicants into thinking it is a requirement to employ an
engineer. We used some of the suggestions to reformat the paragraph at
Sec. 86.43(i) and to clarify or further explain at paragraphs (b),
(c), (e), (g)(3), (i), and (j).
Comment 72: Combine purpose and objective.
Response 72: We make no change based on this comment. Purpose and
objective are two separate and distinct parts of a project statement.
The purpose refers to the reason for the project and will include verbs
such as create, improve, and increase. Objectives are brief guidelines
that will help a grantee achieve project goals by stating more
specifically the intended outputs, such as: The number of slips for
transient boaters, the linear feet of new dock space, the time needed
to complete that goal, and any information that describes that the goal
is attainable and relevant.
Comment 73: You should give examples of measurable and verifiable
objectives.
Response 73: We make no change based on this comment. We will
consider offering further guidance outside of regulation.
Comment 74: It may be difficult for applicants to state a useful
life for a capital improvement at the application stage.
Response 74: We make changes to clarify approach and expectations.
At Sec. 86.43(f), we change ``state'' to ``estimate'' and add a
sentence that a grantee will finalize useful life during the approval
process. This change informs an applicant that it must include
information on useful life in the application, but it will be reviewed
and may be changed, if necessary, when it receives an award. We also
make clarifying changes at Sec. 86.75, which is Sec. 86.74 in this
final rule.
An applicant may seek guidance from technical literature and from
vendors, engineers, and others knowledgeable individuals to estimate
the useful life of each capital improvement. We will reject an
application that does not have the required estimates for useful life.
Once a project is approved for an award, the Service may confer with
the grantee on the estimate given in the application. A grantee must
finalize the useful life before the award.
If an applicant is seeking points for the criterion at Sec.
86.51(c)(2) as described at Sec. 86.59(b)(2), it must give adequate
information in the application to support the request for consideration
under the criterion. If we find before we approve the grant that an
applicant cannot show a reasonably expected increased benefit to earn
the extra point(s), we will subtract the point(s) related to that
criterion from the total score for that project and adjust awards
accordingly.
Comment 75: No minimum useful life is identified. The current rule
states
[[Page 26157]]
useful life is 20 years. Does this mean applicants can decide another
period for useful life?
Response 75: We explained in the preamble of the proposed rule
published at 77 FR 18767 on March 28, 2012, that we propose to
eliminate the 20-year requirement and replace it with a useful life
requirement based on capital improvements. The useful life
determination described at Sec. Sec. 86.73 and 86.74 will help
grantees to better understand their responsibilities.
Section 86.44 What if I need more than the maximum Federal share and
required match to complete my BIG-funded project?
We revise this section in response to a comment that asked us to
reference this section at Sec. 86.73. Upon further consideration, we
concluded the two sections contain almost identical content, so we
combine all the information at Sec. 86.44.
Comment 76: Add an option to this section that will allow grantees
to reduce the scope of their project if they find that actual costs
greatly exceed projected costs.
Response 76: We make no change based on this comment. In BIG Tier
2-National project review and ranking, the scope is a major factor that
influences the amount of points that a project receives. If the scope
were reduced, it could impact the score and ranked order. It is
important that applicants are thorough when preparing their application
and consider all factors that could influence costs during the period
of performance.
Section 86.45 If the Service does not select my grant application for
funding, can I apply for the same project the following year?
No comments received.
Section 86.46 What changes can I make in a grant application after I
submit it?
Comment 77: Clarify and give examples for changes after the due
date as found at paragraph (b). If part of an application is found to
be ineligible, will you allow applicants to change the scope, budget,
etc., and continue the review and ranking?
Response 77: We clarify and reformat paragraph (b) to state that if
an applicant proposes using BIG funds for an action that we identify as
ineligible, we will decide on a case-by-case basis whether we will
consider the rest of the application for funding. We do not give
examples in the regulation as there are many possible scenarios and to
give any examples may make the regulation more confusing. We may seek
advice from the applicant or members of the advisory panel, but we will
make the final decision. If we decide to accept the application with
the ineligible costs removed, we will ask the applicant to change the
application accordingly.
Comment 78: Delete paragraph (f) on accepting reduced funding as
this does not foster the competitive aspect of the program unless
offered to all non-funded applicants.
Response 78: We make changes in this paragraph to clarify this
issue. We review and rank all competitive grant applications according
to the BIG criteria, arrange them in ranked order, and award available
funds to projects, starting with those ranked the highest. The amount
of available funds and the amount of funding requests never match.
Paragraph (f) describes the approach we may use when funding is still
available, but the next ranked project cannot be funded at the level
requested. We may approach the applicant for the next highest ranked
project to offer the remaining funds. If the applicant declines, we may
continue the process to maximize BIG Tier 2--National funding.
Subpart E--Project Selection
We received a comment supporting all amendments and additions to
this subpart.
Section 86.50 Who ranks BIG Tier 2--National grant applications?
No comments received.
Section 86.51 What criteria does the Service use to evaluate BIG Tier
2--National applications?
Comment 79: Suggest a project achieve a score of at least 65
percent of the total available in order to be considered for funding. A
project that receives below this score is clearly not competitive and
should not be considered, even if there is funding available.
Response 79: We agree with the approach to set a minimum standard
for funding BIG Tier 2--National applications as an incentive for
developing more competitive projects. As we did not discuss this in the
proposed rule, we change this section to allow us to set a scoring
standard in the NOFO. We will use feedback from States, advisors, and
others to assess if we wish to set a minimum total score standard. We
may announce in the NOFO a minimum total score of 23, which is 65
percent of the maximum total score available in criterion at paragraphs
(a) and (b).
Comment 80: Consider awarding points for projects in federally
designated disaster areas so we can leverage BIG funds to aid in the
recovery.
Response 80: We make no change based on this comment. We score
competitive applications based on need as described at Sec. 86.52. We
will consider all factors in an application that address the need for
the project, including those factors as they may relate to disaster
response and rebuilding.
Comment 81: We received two comments recommending we adjust the
points in the ranking criteria to create a possible total of 100. One
of these comments includes removing Sec. 86.51(c)(2) and (c)(3). One
commenter included a table that showed these changes and added
designations from Sec. 86.43 that correspond to the criteria.
Response 81: We do not accept the suggestions for revising scoring
and removing two paragraphs at Sec. 86.51(c). Many comments we
received in response to the proposed rule published at 77 FR 18767,
March 28, 2012, stated they want a point range for scoring each
criterion, but that a wide range is not effective. In response, we
reduced the point range for scoring in the proposed rule published
April 25, 2014. We received comments supporting Sec. Sec. 86.51(c)(2)
and (c)(3) and we will retain those sections.
The criterion at Sec. 86.51(c)(2) is important because it
encourages applicants to consider the future, plan for projects that
extend the availability of the BIG-funded facility, and improve
services to eligible users. This criterion also addresses the desire
for grantees to build projects using design and processes that improve
resiliency to the effects of climate change. Many States asked us to
include the criterion at Sec. 86.51(c)(3) to recognize the value of
those operators who voluntarily participate in Clean Marina and other
similar programs. We agree and recognize the benefit to eligible users.
We agree that information to help applicants relate criteria to the
project statement is desirable, but not through this regulation. We
will work with our partners to develop and distribute further guidance
to help applicants.
Comment 82: The criterion at Sec. 86.51(a)(2) does not address
justification for the cost of the project. Instead, it focuses on
comparing costs with benefits as a means of comparing one application
to another. Recommend changing the question to be more about how costs
compare to benefits rather than if the costs are justified by the
benefits.
[[Page 26158]]
Response 82: We do not make a change at Sec. 86.51(a)(2), but we
agree that the explanation for this criterion at Sec. 86.53 could be
interpreted that we would compare an application to others in the same
grant cycle. We change Sec. 86.53 to state we will consider the costs
as they relate to the benefits for individual projects and not as
projects compare to each other in the same grant cycle. We also add
guidance at paragraph Sec. 86.53(d) recommending that an applicant
inform us if project costs are inflated due to: (a) Specialized
materials to increase the useful life, (b) the cost of transporting
materials to a remote location, (c) unusual costs associated with
producing benefits at a certain site or in a certain geographic area,
or (d) the cost of providing environmentally friendly facilities.
Comment 83: Recommend replacing in-kind with substantial because
in-kind is just another type of match and it should not matter what
type of match it is.
Response 83: We make no change based on this comment. We received
many comments on this subject while preparing for this rulemaking. We
responded to recommendations to allow us to consider the nonmonetary
contributions of partners as well as the monetary contributions. The
purpose of the criterion at Sec. 86.51(b)(2) is to allow for
partnerships in smaller communities to rank well even if they do not
result in large financial contributions. The word substantial is
subjective and could result in negating the spirit of giving credit for
smaller contributors.
Section 86.52 What does the Service consider when evaluating a project
on the need for more or improved boating infrastructure?
When evaluating a project on the need for more or improved boating
infrastructure facilities as described at Sec. 86.52(c), we will
consider creating accessibility for eligible vessels by increasing
water depth. We received a comment supporting this factor.
Section 86.53 What factors does the Service consider for benefits to
eligible users that justify the cost?
We make changes to this section based on comments received under
Sec. 86.51. See Response 82.
Comment 84: Construction costs can vary widely across the country
for reasons such as meeting hurricane standards, installing bubbler
systems where ice is a factor, and adding transportation costs for
remote locations. Recommend applicants be told to explain why higher
costs may be justified.
Response 84: We agree and make changes as discussed in Response 82.
Comment 85: Recommend adding consideration for costs associated
with making the project a harbor of safe refuge.
Response 85: We agree and add paragraph (e) to tell applicants to
include this information.
Section 86.54 What does the Service consider when evaluating a project
on boater access to significant destinations and services that support
transient boater travel?
We received a comment supporting the focus on both attractions and
boater services in the ranking criterion at Sec. 86.51(a)(3).
Comment 86: Recommend including proximity to a harbor of safe
refuge under this criterion.
Response 86: We agree and add at paragraph (c) that we will
consider safety as well as services.
Section 86.55 What does the Service consider as a partner for the
purposes of these ranking criteria?
No comments received.
Section 86.56 What does the Service consider when evaluating a project
that includes more than the minimum match?
Comment 87: Recommend deleting the word cash at paragraph (a)
because it precludes additional points for in-kind contributions.
Response 87: We make no change based on this comment. In-kind
contributions are discussed at Sec. 86.57.
Comment 88: We received two comments recommending a different
standard for awarding points based on percentage of additional cash
match. Both recommendations were based on increasing the total points
at Sec. 86.51 that may be considered for this criterion for a maximum
of 25 points.
Response 88: We did not accept the recommended changes at this
section as we did not accept the related recommended changes in Comment
81. However, upon further review we change the percent ranges to
encourage applicants to offer more match to their project.
Section 86.57 What does the Service consider when evaluating
contributions that a partner brings to a project?
No comments received.
Section 86.58 What does the Service consider when evaluating a project
for a physical component, technology, or technique that will improve
eligible user access?
No comments received.
Section 86.59 What does the Service consider when evaluating a project
for innovative physical components, technology, or techniques that
improve the BIG project?
Comment 89: We consider Sec. 86.59(b)(4) and (5) to be unneeded
and a potential obstacle to participation. These two requirements are
typically considered during project design and would be enforced during
the permitting process.
Response 89: We make no change based on this comment. This section
is not a requirement, and there is no reason for it to be an obstacle
to participation. This section allows us to consider additional points
for innovative physical components, technology, or techniques that
improve the BIG project. The items at Sec. 86.59(b)(4) and (5) are
examples of how an applicant could qualify for these additional points
by exceeding the compliance requirements. If an applicant is required
to use a physical component, technology, or technique to comply with
local, State, or Federal regulations, then we do not consider
additional points under this criterion. This section is for applicants
who voluntarily choose an innovative approach that increases the
resilience of project components or otherwise improves the project.
Section 86.60 What does the Service consider when evaluating a project
for demonstrating a commitment to environmental compliance,
sustainability, and stewardship?
We received a comment that supports the additional point we offer
for marinas that have received official recognition for their voluntary
commitment to exceeding required standards.
Section 86.61 What happens after the Director approves projects for
funding?
No comments received. We delete Sec. 86.42(c) and refer to this
section.
Subpart F--Grant Administration
Section 86.70 What standards must I follow when constructing a BIG-
funded facility?
No comments received.
Section 86.71 How much time do I have to complete the work funded by a
BIG grant?
We received several comments supporting the length of the period of
performance and the amendment to allow a first extension for up to 2
years. The commenters state that the length of the period of
performance is important to ensure project completion.
[[Page 26159]]
Comment 90: Clarify that we could have almost 6 years to complete a
project if we combine the 3-year period of performance with the 3-year
period of obligation.
Response 90: There is potential that combining the obligation
period with the period of performance could result in 6 years from the
beginning of the fiscal year the project is awarded to the end of the
period of performance. However, this may not always be true. A grantee
may coordinate with us after we award a grant to set a start date for
the period of performance within the obligation period. We add that we
will work with a grantee to set a start date within the 3-year period
of obligation.
Section 86.72 What if I cannot complete the project during the period
of performance?
No comments received.
Section 86.73 What if I need more funds to finish a project?
Comment 91: Recommend adding a reference in this section to Sec.
86.44 as the two sections are related.
Response 91: We agree, and upon further review we consider most of
Sec. 86.73 and Sec. 86.44 to be redundant. We revise Sec. 86.44 to
include additional information from Sec. 86.73 and delete the content
of Sec. 86.73. We renumber Sec. Sec. 86.74 through 86.79 as
Sec. Sec. 86.73 through 86.78.
Section 86.74 [now Sec. 86.73] How long must I operate and maintain a
BIG-funded facility, and who is responsible for the cost of facility
operation and maintenance?
Comment 92: Recommend the owner of the BIG-funded facility be
responsible for continued operation and maintenance and not the State.
Response 92: We make no change based on this comment. A State may
enter into a contractual agreement with the facility owner, subgrantee,
or other type of operator that designates them as the responsible party
for continued operation and maintenance. However, should they not
fulfill their obligations, the State as grantee is ultimately
responsible.
Section 86.75 [now Sec. 86.74] How do I determine the useful life of a
BIG-funded facility?
Comment 93: We received two comments recommending this section be
simplified to avoid confusion.
Response 93: We considered these comments and clarify this section
by presenting it as a step-by-step process. We emphasize that the
initial application must include a useful life estimate, but the
estimate may be based on information from resources that are typically
available when developing a grant application. We also clearly allow a
State to choose only one of the methods for finalizing useful life in
the grant and use that method exclusively for BIG in that State.
Comment 94: Recommend changing the language so that it is clear how
to apply the process. It is unclear how components relate to the larger
systems and what would happen if a smaller component is no longer
useful, but necessary for continued use of a larger one. For example,
if a gangway costs less than $25,000 and it falls into disrepair, can
the operator remove and not replace it, even if it is necessary to
access the dock system?
Response 94: We changed this section to clarify at Sec.
86.74(a)(1)(iv) and (v) that each smaller component must be associated
with a capital improvement. If it supports more than one, the smaller
component must be associated with the capital improvement with the
longest expected useful life.
Section 86.76 [now Sec. 86.75] How should I credit BIG?
No comments received.
Section 86.77 [now Sec. 86.76] How can I use the logo for BIG?
No comments received.
Section 86.78 [now Sec. 86.77] How must I treat program income?
We received a comment supporting our approach to clarifying program
income.
Comment 95: Recommend you add that we should tell you if project
construction is completed before the end of the period of performance
to reduce the impact of income earned.
Response 95: We agree and add paragraph (e) to recommend grantees
tell us when project construction is completed.
Section 86.79 [now Sec. 86.78] How must I treat income earned after
the period of performance?
No comments received.
Subpart G--Facility Operations and Maintenance
Section 86.90 How much must an operator of a BIG-funded facility charge
for using the facility?
We received several comments supporting the change to allow marinas
to offer services for free if that is the prevailing rate.
Comment 96: What if a town or city council mandates a high fee just
to raise revenue? It seems unfair to make boaters pay the higher fee.
Response 96: We agree and added language at Sec. 86.90(c) that we
will accept a State or locally imposed fee schedule if it is reasonable
and does not impose an undue burden on eligible users.
Comment 97: Clarify that when determining prevailing rates that
similar facilities are being compared. It would not be fair to compare
the rates from a private, member-only marina to a public or private
marina open to the public. Another example of differing types of
facilities would be a public dock connected to a city center compared
to a public dock connected to an island.
Response 97: We state at Sec. 86.90(a) that the facilities we
consider when determining prevailing rates must offer similar services
or amenities. We respond to this comment by adding that they are to be
similarly situated as well.
Section 86.91 May an operator of a BIG-funded facility increase or
decrease user fees during its useful life?
No comments received.
Section 86.92 Must an operator of a BIG-funded facility allow public
access?
Comment 98: Change the word ``operator'' to ``contractor'' to match
the definitions.
Response 98: We make no change to this section based on this
comment. We clarify by adding the term ``operator'' at Sec. 86.3.
Section 86.93 May I prohibit overnight use by eligible vessels at a
BIG-funded facility?
Comment 99: Clarify if we can change to a day-use only facility
after the project is completed, but before it reaches the end of its
useful life. Would we use the guidance at Subpart H to do this?
Response 99: If a grantee wishes to convert a Tier 1-State or a
Tier 2-National project from an overnight to a day-use facility, it
must contact the Regional Office for guidance. A subgrantee must
contact their State, which will in turn contact the Regional Office.
The change in usage will alter the scope of the project, and deviation
from the original project scope may constitute a breach of a grant
agreement. Grantees must receive our approval before making any changes
in the scope of a project at any time during its useful life. [See 2
CFR 200.201(b)(5) and 200.308(b)]
[[Page 26160]]
Section 86.94 Must I give information to eligible users and the public
about BIG-funded facilities?
We received several comments supporting the change to allow using
signs and other forms of emerging communication to inform eligible
users about the facility and eligible uses.
Subpart H--Revisions and Appeals
Section 86.100 Can I change the information in a grant application
after I receive a grant?
No comments received.
Section 86.101 How do I ask for revision of a grant?
No comments received.
Section 86.102 Can I appeal a decision?
No comments received.
Section 86.103 Can the Director authorize an exception to this part?
No comments received.
Subpart I--Information Collection
Section 86.110 What are the information collection requirements of this
part?
No comments received.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. OIRA has
determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
The Regulatory Flexibility Act requires an agency to consider the
impact of 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 head of an agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The Small Business Regulatory Enforcement Fairness Act (SBREFA) amended
the Regulatory Flexibility Act to require Federal agencies to state the
factual basis for certifying that a rule will not have a significant
economic impact on a substantial number of small entities.
We have examined this final rule's potential effects on small
entities as required by the Regulatory Flexibility Act. We have
determined that the changes in the final rule do not have a significant
impact and do not require a Regulatory Flexibility Analysis because the
changes:
a. Give information to State fish and wildlife agencies that allows
them to apply for and administer grants more easily, more efficiently,
and with greater flexibility. Only State fish and wildlife agencies may
receive BIG grants.
b. Address changes in law and regulation. This helps grant
applicants and recipients by making the regulation consistent with
current standards.
c. Reword and reorganize the regulation to make it easier to
understand.
d. Allow small entities to voluntarily become subgrantees of
agencies and any impact on these subgrantees would be beneficial.
The Service has determined that the changes primarily affect State
governments and any small entities affected by the changes voluntarily
enter into mutually beneficial relationships with a State agency. They
are primarily concessioners and subgrantees and the impact on these
small entities will be very limited and beneficial in all cases.
Consequently, we certify that because this final rule will not have
a significant economic effect on a substantial number of small
entities, a Regulatory Flexibility Analysis is not required.
In addition, this final rule is not a major rule under SBREFA (5
U.S.C. 804(2)) and will not have a significant impact on a substantial
number of small entities because it 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. 1501 et seq.)
establishes requirements for Federal agencies to assess the effects of
their regulatory actions on State, local, and tribal governments and
the private sector. The Act requires each Federal agency, to the extent
permitted by law, to prepare a written assessment of the effects of 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 1 year. We have determined the following under the Unfunded
Mandates Reform Act:
a. As discussed in the determination for the Regulatory Flexibility
Act, this final rule will not have a significant economic effect on a
substantial number of small entities.
b. The regulation does not require a small government agency plan
or any other requirement for expending 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 eligible
agency.
d. The final rule clarifies and improves upon the current
regulations allowing State, local, and tribal governments and the
private sector to receive the benefits of grant funding in a more
flexible, efficient, and effective manner.
e. Any costs incurred by a State, local, or tribal government or
the private sector are voluntary. There are no mandated costs
associated with the final rule.
f. The benefits of grant funding outweigh the costs. The Federal
Government provides up to 75 percent of the total project costs in each
requested grant to the 50 States, the Commonwealth of Puerto Rico, and
the District of Columbia. The Federal Government will also waive the
first $200,000 of match for each grant to the Commonwealth of the
Northern Mariana Islands and the territories of Guam, the U.S. Virgin
Islands, and American Samoa. Of the 50 States and 6 other jurisdictions
that voluntarily are eligible to apply for grants in these programs
[[Page 26161]]
each year, 95 percent have participated. This is clear evidence that
the benefits of this grant funding outweigh the costs.
g. This final rule will not produce a Federal mandate of $100
million or greater in any year, i.e., it is not a ``significant
regulatory action'' under the Unfunded Mandates Reform Act.
Takings
This final rule will not have significant takings implications
under E.O. 12630 because it will not have a provision for taking
private property. Therefore, a takings implication assessment is not
required.
Federalism
This final rule will not have sufficient Federalism effects to
warrant preparing a federalism summary impact statement under E.O.
13132. It would not interfere with the States' ability to manage
themselves or their funds. We work closely with the States
administering these programs. They helped us identify those sections of
the current regulations needing further consideration and new issues
that prompted us to develop a regulatory response. In drafting the
final rule, we received comments from the Sport Fishing and Boating
Partnership Council, a nongovernmental committee established under the
Federal Advisory Committee Act; the States Organization for Boating
Access; the Joint Federal/State Task Force on Federal Assistance
Policy; and individual States.
Civil Justice Reform
The Office of the Solicitor has determined under E.O. 12988 that
the rule will not unduly burden the judicial system and meets the
requirements of sections 3(a) and 3(b)(2) of the Order. The final rule
will help grantees because it:
a. Updates the regulations to reflect changes in policy and
practice and recommendations received during the past 14 years;
b. Makes the regulations easier to use and understand by improving
the organization and using plain language;
c. Modifies the final rule to amend 50 CFR part 86 published in the
Federal Register at 66 FR 5282 on January 18, 2001, based on subsequent
experience; and
d. Adopts recommendations on new issues received from State fish
and wildlife agencies and the Sport Fishing and Boating Partnership
Council since we published the current rule.
Paperwork Reduction Act
This final rule does not contain new information collection
requirements that require approval under the PRA (44 U.S.C. 3501 et
seq.). OMB has reviewed and approved the U.S. Fish and Wildlife Service
application and reporting requirements associated with the Boating
Infrastructure Grant Program and assigned OMB Control Number 1018-0109,
which expires September 30, 2015. We may not conduct or sponsor and you
are not required to respond to a collection of information unless it
displays a currently valid OMB control number.
National Environmental Policy Act
We have analyzed this rule under the National Environmental Policy
Act (42 U.S.C. 4321 et seq.) 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 given 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 does
not affect energy supplies, distribution, or use. Therefore, this
action is not a significant energy action and no Statement of Energy
Effects is required.
List of Subjects in 50 CFR Part 86
Administrative practice and procedure, Boats and boating safety,
Fishing, Grants administration, Grant programs, Harbors, Intermodal
transportation, Marine resources, Natural resources, Navigation
(water), Recreation and recreation areas, Reporting and recordkeeping
requirements, Rivers, Signs and symbols, Vessels, Water resources,
Waterways.
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
86 to read as follows:
PART 86--BOATING INFRASTRUCTURE GRANT PROGRAM
Subpart A--General
Sec.
86.1 What does this part do?
86.2 What is the purpose of BIG?
86.3 What terms do I need to know?
Subpart B--Program Eligibility
86.10 Who may apply for a BIG grant?
86.11 What actions are eligible for funding?
86.12 What types of construction and services does boating
infrastructure include?
86.13 What operational and design features must a facility have
where a BIG-funded facility is located?
86.14 How can I receive BIG funds for facility maintenance?
86.15 How can dredging qualify as an eligible action?
86.16 What actions are ineligible for BIG funding?
86.17 Who must own the site of a BIG-funded facility?
86.18 How can I ensure that a BIG-funded facility continues to serve
its intended purpose for its useful life?
86.19 What if a BIG-funded facility would benefit both eligible and
ineligible users?
Subpart C--Federal Funds and Match
86.30 What is the source of BIG funds?
86.31 How does the Service know how much money will be available for
BIG grants each year?
86.32 What are the match requirements?
86.33 What information must I give on match commitments, and where
do I give it?
86.34 What if a partner is not willing or able to follow through on
a match commitment?
Subpart D--Application for a Grant
86.40 What are the differences between BIG Tier 1--State grants and
BIG Tier 2--National grants?
86.41 How do I apply for a grant?
86.42 What do I have to include in a grant application?
86.43 What information must I put in the project statement?
86.44 What if I need more than the maximum Federal share and
required match to complete my BIG-funded project?
86.45 If the Service does not select my grant application for
funding, can I apply for the same project the following year?
86.46 What changes can I make in a grant application after I submit
it?
Subpart E--Project Selection
86.50 Who ranks BIG Tier 2--National grant applications?
[[Page 26162]]
86.51 What criteria does the Service use to evaluate BIG Tier 2--
National applications?
86.52 What does the Service consider when evaluating a project on
the need for more or improved boating infrastructure?
86.53 What factors does the Service consider for benefits to
eligible users that justify the cost?
86.54 What does the Service consider when evaluating a project on
boater access to significant destinations and services that support
transient boater travel?
86.55 What does the Service consider as a partner for the purposes
of these ranking criteria?
86.56 What does the Service consider when evaluating a project that
includes more than the minimum match?
86.57 What does the Service consider when evaluating contributions
that a partner brings to a project?
86.58 What does the Service consider when evaluating a project for a
physical component, technology, or technique that will improve
eligible user access?
86.59 What does the Service consider when evaluating a project for
innovative physical components, technology, or techniques that
improve the BIG project?
86.60 What does the Service consider when evaluating a project for
demonstrating a commitment to environmental compliance,
sustainability, and stewardship?
86.61 What happens after the Director approves projects for funding?
Subpart F--Grant Administration
86.70 What standards must I follow when constructing a BIG-funded
facility?
86.71 How much time do I have to complete the work funded by a BIG
grant?
86.72 What if I cannot complete the project during the period of
performance?
86.73 How long must I operate and maintain a BIG-funded facility,
and who is responsible for the cost of facility operation and
maintenance?
86.74 How do I determine the useful life of a BIG-funded facility?
86.75 How should I credit BIG?
86.76 How can I use the logo for BIG?
86.77 How must I treat program income?
86.78 How must I treat income earned after the period of
performance?
Subpart G--Facility Operations and Maintenance
86.90 How much must an operator of a BIG-funded facility charge for
using the facility?
86.91 May an operator of a BIG-funded facility increase or decrease
user fees during its useful life?
86.92 Must an operator of a BIG-funded facility allow public access?
86.93 May I prohibit overnight use by eligible vessels at a BIG-
funded facility?
86.94 Must I give information to eligible users and the public about
BIG-funded facilities?
Subpart H--Revisions and Appeals
86.100 Can I change the information in a grant application after I
receive a grant?
86.101 How do I ask for a revision of a grant?
86.102 Can I appeal a decision?
86.103 Can the Director authorize an exception to this part?
Subpart I--Information Collection
86.110 What are the information-collection requirements of this
part?
Authority: 16 U.S.C. 777c, g, and g-1.
Subpart A--General
Sec. 86.1 What does this part do?
(a) This part tells States how they may apply for and receive
grants from the Boating Infrastructure Grant program (BIG) Tier 1-State
and Tier 2-National subprograms. Section 86.40 describes the
differences between these two subprograms.
(b) The terms you, your, and I refer to a State agency that applies
for or receives a BIG grant. You may also apply to a subgrantee with
which a State agency has a formal agreement to construct, operate, or
maintain a BIG-funded facility.
(c) The terms we, us, and our refer to the U.S. Fish and Wildlife
Service.
Sec. 86.2 What is the purpose of BIG?
The purpose of BIG is to construct, renovate, and maintain boating
infrastructure facilities for transient recreational vessels at least
26 feet long.
Sec. 86.3 What terms do I need to know?
For the purposes of this part, we define these terms:
BIG-funded facility means only the part of a facility that we fund
through a BIG grant.
Boating infrastructure means all of the structures, equipment,
accessories, and services that are necessary or desirable for a
facility to accommodate eligible vessels. See Sec. 86.12 for examples
of boating infrastructure.
Capital improvement means:
(1) A new structure that costs at least $25,000 to build; or
(2) Altering, renovating, or repairing an existing structure if it
increases the structure's useful life by 10 years or if it costs at
least $25,000.
Concessioner means an entity with which a State has a written
agreement to operate or manage a BIG-funded facility. The agreement
with a concessioner may or may not involve a financial exchange. A
concessioner is not a contractor or vendor. You pay a contractor or
vendor to perform specific duties or supply specific materials
according to a written contract. Concessioners, vendors, and
contractors are not grant recipients.
Construction means the act of building or significantly altering,
renovating, or repairing a structure. Clearing and reshaping land and
demolishing structures are types or phases of construction. Examples of
structures are buildings, docks, piers, breakwaters, and slips.
Director means:
(1) The Director of the Fish and Wildlife Service whom the
Secretary of the Interior has delegated authority to administer BIG
nationally; or
(2) A deputy or another person whom the Director has delegated
authority over BIG.
Eligible user means an operator or passenger of an eligible vessel.
Eligible vessel means a transient recreational vessel at least 26
feet long. The term includes vessels that are owned, loaned, rented, or
chartered. The term does not include:
(1) Commercial vessels;
(2) Vessels that dock or operate permanently from the facility
where a BIG-funded project is located; or
(3) Vessels that receive payment to routinely transport passengers
on a prescribed route, such as cruise ships, dive boats, and ferries.
Facility means the structures, equipment, and operations that:
(1) Provide services to boaters at one location; and
(2) Are under the control of a single operator or business
identified in the grant application.
Grant means an approved award of money, the principal purpose of
which is to transfer funds from a Federal awarding agency to the non-
Federal entity (grantee) to carry out an authorized public purpose and
includes the matching cash and any matching in-kind contributions. The
legal instrument used is a grant agreement.
Grants.gov is a centralized location for States and other entities
to find and apply for Federal funding. It is located at https://www.grants.gov. We require States to use grants.gov, or any system that
replaces it, to apply for BIG grants.
Maintenance means keeping structures or equipment in a condition to
serve the intended purpose. It includes cyclical or occasional actions
to keep facilities fully functional. It does not include operational
actions such as janitorial work. Examples of maintenance actions are:
(1) Lubricating mechanical components of BIG-funded equipment;
(2) Replacing minor components of a BIG-funded improvement, such as
bolts, boards, and individual structural components; and
(3) Painting, pressure washing, and repointing masonry.
Marketing means an activity that promotes a business to interested
[[Page 26163]]
customers for the financial benefit of the facility. It may include a
plan for sales techniques and strategies, business communication, and
business development. A business uses marketing to find, satisfy, and
keep a customer.
Match means the value of any cash or in-kind contributions required
or volunteered to complete the BIG-funded facility that are not borne
by the Federal Government, unless a Federal statute authorizes such
match. Match must follow the criteria at 2 CFR 200.306(b).
Navigable waters means waters that are deep and wide enough for the
passage of eligible vessels within the water body.
Operation means actions that allow a BIG-funded facility or parts
of a BIG-funded facility to perform their function on a daily or
frequent basis. Examples of operation are janitorial work, service
workers, facility administration, utilities, rent, taxes, and
insurance.
Operator means an individual or entity that is responsible for
operating a BIG-funded facility. An operator may be a grantee, a
subgrantee, a concessioner, or another individual or entity that the
grantee has an arrangement with to operate the BIG-funded facility.
Personal property means anything tangible or intangible that is not
real property.
Program income means gross income earned by the grantee or
subgrantee that is directly generated by a grant-supported activity, or
earned as a result of the grant, during the period of performance.
Project means one or more related actions that are eligible for BIG
funding, achieve specific goals and objectives of BIG, and in the case
of construction, occur at only one facility.
Project cost means total allowable costs incurred under BIG and
includes Federal funds awarded through the BIG grant and all non-
Federal funds given as the match or added to the Federal and matching
shares to complete the BIG-funded project.
Public communication means communicating with the public or news
media about specific actions or achievements directly associated with
BIG. The purpose is to inform the public about BIG-funded projects or
the BIG program.
Real property means one, several, or all interests, benefits, and
rights inherent in owning a parcel of land. A parcel includes anything
physically and firmly attached to it by a natural or human action.
Examples of real property in this rule include fee and leasehold
interests, easements, fixed docks, piers, permanent breakwaters,
buildings, utilities, and fences.
Regional Office means the main administrative office of one of the
Service's geographic Regions in which a BIG-funded project is located.
Each Regional Office has a:
(1) Regional Director appointed by the Director to be the chief
executive official of the Region and authorized to administer Service
activities in the Region, except for those administered directly by the
Service's Headquarters Office; and
(2) Division of Wildlife and Sport Fish Restoration (WSFR) or its
equivalent that administers BIG grants.
Renovate means to rehabilitate all or part of a facility to restore
it to its intended purpose or to expand its purpose to allow use by
eligible vessels or eligible users.
Scope of a project means the purpose, objectives, approach, and
results or benefits expected, including the useful life of any capital
improvement.
Service means the U.S. Fish and Wildlife Service.
State means any State of the United States, the Commonwealths of
Puerto Rico and the Northern Mariana Islands, the District of Columbia,
and the territories of Guam, the U.S. Virgin Islands, and American
Samoa.
Transient means travel to a single facility for day use or staying
at a single facility for up to 15 days.
Useful life means the period during which a BIG-funded capital
improvement is capable of fulfilling its intended purpose with adequate
routine care and maintenance. See Sec. Sec. 86.73 and 86.74.
Subpart B--Program Eligibility
Sec. 86.10 Who may apply for a BIG grant?
One agency in each eligible State may apply for a BIG grant if
authorized to do so by:
(a) A statute or regulation of the eligible jurisdiction;
(b) The Governor of the State, Commonwealth, or territory; or
(c) The Mayor of the District of Columbia.
Sec. 86.11 What actions are eligible for funding?
(a) The following actions are eligible for BIG funding if they are
for eligible users or eligible vessels:
(1) Construct, renovate, or maintain publicly or privately owned
boating infrastructure (see Sec. 86.12) following the requirements at
Sec. 86.13. This may include limited repair or restoration of roads,
parking lots, walkways, and other surface areas damaged as a direct
result of BIG-funded construction.
(2) Conduct actions necessary to construct boating infrastructure,
such as:
(i) Engineering, economic, environmental, historic, cultural, or
feasibility studies or assessments; and
(ii) Planning, permitting, and contracting.
(3) Dredging a channel, boat basin, or other boat passage following
the requirements at Sec. 86.15.
(4) Install navigational aids to give transient vessels safe
passage between a facility and navigable channels or open water.
(5) Produce information and education materials specific to BIG or
a BIG-funded project and that credit BIG as a source of funding when
appropriate. Examples of eligible actions include:
(i) Locating BIG-funded facilities on charts and cruising guides;
(ii) Creating Statewide or regional brochures telling boaters about
BIG and directing them to BIG-funded facilities;
(iii) Advertising a BIG-funded facility in print or electronic
media with the emphasis on BIG, the BIG-funded facility, or services
for eligible users, and not on marketing the marina as a whole;
(iv) Marina newsletter articles, marina or agency Web pages, and
other communications you produce that are directly related to the BIG-
funded project;
(v) Giving boaters information and resources to help them find and
use the BIG-funded facility; and
(vi) Public communication.
(6) Record the Federal interest in the real property.
(7) Use BIG Tier 1--State grant awards to administer BIG Tier 1--
State and BIG Tier 2--National grants, or grant programs, Statewide.
This includes coordinating and monitoring to ensure BIG-funded
facilities are well-constructed, meet project objectives, and serve the
intended purpose for their useful life; and to manage BIG grant
performance or accomplishments.
(b) You may ask your Regional Office to approve preaward costs for
eligible actions. You incur preaward costs at your own risk, as we will
only reimburse you for preaward costs we approved if you receive a
grant.
(c) Applicants may seek funding for installing pumpout facilities
through the Clean Vessel Act Grant Program (CVA) instead of including
the cost as part of a BIG grant application. A State may require a
pumpout be funded through CVA, Catalog of Federal Domestic Assistance
number 15.616.
(d) Other actions may qualify for BIG funding, subject to our
approval, if they
[[Page 26164]]
achieve the purposes of BIG. We will describe actions we approve and
how they are eligible for BIG funding in the full text of the annual
Notice of Funding Opportunity (NOFO).
Sec. 86.12 What types of construction and services does boating
infrastructure include?
Boating infrastructure may include:
(a) Boat slips, piers, mooring buoys, floating docks, dinghy docks,
day docks, and other structures for boats to tie-up and gain access to
the shore or services.
(b) Fuel stations, restrooms, showers, utilities, and other
amenities for transient-boater convenience.
(c) Lighting, communications, buoys, beacons, signals, markers,
signs, and other means to support safe boating and give information to
aid boaters.
(d) Breakwaters, sea walls, and other physical improvements to
allow an area to offer a harbor of safe refuge. A harbor of safe refuge
is an area that gives eligible vessels protection from storms. To be a
harbor of safe refuge, the facility must offer a place to secure
eligible vessels and offer access to provisions and communication for
eligible users.
(e) Equipment and structures for collecting, disposing of, or
recycling liquid or solid waste from eligible vessels or for eligible
users.
Sec. 86.13 What operational and design features must a facility have
where a BIG-funded facility is located?
(a) At project completion, a facility where a BIG-funded facility
is located must:
(1) Be open to eligible users and operated and maintained for its
intended purpose for its useful life;
(2) Clearly designate eligible uses and inform the public of
restrictions;
(3) Offer security, safety, and service for eligible users and
vessels;
(4) Be accessible by eligible vessels on navigable waters;
(5) Allow public access as described at Sec. 86.92;
(6) Have docking or mooring sites with water access at least 6 feet
deep at the lowest tide or fluctuation, unless the facility qualifies
under paragraph (c) of this section; and
(7) Have an operational pumpout station if:
(i) Eligible vessels stay overnight; and
(ii) Available pumpout service is not located within 2 nautical
miles; or
(iii) State or local laws require one on site.
(b) We will waive the pumpout requirement if you show in the grant
application the inability to install a pumpout.
(1) We will review your request and will grant the waiver if you
present circumstances that show:
(i) A hardship due to lack of utilities or other difficult
obstacles, such as a BIG-funded facility on an island with no power or
a remote location where the equipment cannot be serviced or maintained
regularly;
(ii) State or local law does not allow septic-waste disposal
facilities at the location;
(iii) You are in the process of applying for a CVA grant for the
same award year as the BIG grant to install a pumpout station as part
of the BIG-funded facility; or
(iv) You have received a CVA grant and will install a pumpout
station as part of the BIG-funded facility on or before the time the
BIG-funded facility is completed.
(2) When we waive the pumpout requirement, the BIG-funded facility
must inform boaters:
(i) They are required to properly treat or dispose of septic waste;
and
(ii) Where they can find information that will direct them to
nearby pumpout stations.
(3) If we deny your request, we will follow the process described
in the annual NOFO.
(4) If you seek an allowance based on this paragraph, you must
include supporting information in the grant application as described at
Sec. 86.43(n)(1).
(c) We will allow water access at a depth less than 6 feet if you
can show that the BIG-funded facility will serve its intended purpose
for typical eligible users that visit that location.
(d) Any of these design features may already be part of the
facility, or be funded through another source, and need not be included
as part of the BIG project.
Sec. 86.14 How can I receive BIG funds for facility maintenance?
(a) For BIG Tier 1--State and BIG Tier 2--National grants:
(1) You may request BIG funds for facility maintenance only if you
will complete the maintenance action during the period of performance.
(2) You may apply user fees collected at the BIG-funded facility
after the period of performance to the maintenance of the facility.
(b) For BIG Tier 1--State grants:
(1) You may request BIG funds for one-time or as-needed maintenance
costs at any BIG-eligible facility as long as the costs are discrete
and follow paragraph (a) of this section.
(2) If you use BIG funds for maintenance at a facility that has
received a BIG grant in the past, you must extend the useful life of
each affected capital improvement accordingly.
(3) States may limit or exclude BIG maintenance funding they make
available to subgrantees.
(c) For BIG Tier 2--National grants, you may request BIG funds for
maintenance if it directly benefits eligible users and is directly
related to the BIG project. You are responsible for all maintenance
costs after the period of performance except as provided at paragraph
(b) of this section.
Sec. 86.15 How can dredging qualify as an eligible action?
(a) Dredging in this part includes the physical action of removing
sediment from the basin and any associated actions, such as
engineering, permitting, dredge-material management, and other actions
or costs that occur because of the dredging. Dredging can qualify as an
eligible action under the grant only if the costs for the dredging-
related actions do not exceed $200,000.
(b) When you complete the project, the BIG-funded dredged area
must:
(1) Have navigable water depth to accommodate eligible vessels as
described at Sec. 86.13(a)(6);
(2) Allow safe, accessible navigation by eligible vessels to, from,
and within the BIG-funded facility; and
(3) Allow eligible vessels to dock safely and securely at transient
slips.
(c) You must show in the grant application that:
(1) Dredging is needed to fulfill the purpose and objectives of the
proposed project; and
(2) You have allocated the dredging costs between the expected use
by eligible vessels and ineligible vessels.
(d) You certify by signing the grant application that you have
enough resources to maintain the dredged area at the approved width and
depth for the useful life of the BIG-funded facility, under typical
conditions.
Sec. 86.16 What actions are ineligible for BIG funding?
(a) These actions or costs are ineligible for BIG funding:
(1) Law enforcement.
(2) Direct administration and operation of the facility, such as
salaries, utilities, and janitorial duties. Janitorial duties may
include:
(i) Routine cleaning;
(ii) Trash and litter collection and removal; and
(iii) Restocking paper products.
(3) Developing a State plan to construct, renovate, or maintain
boating infrastructure.
(4) Acquiring land or any interest in land.
(5) Constructing, renovating, or maintaining roads or parking lots,
[[Page 26165]]
except limited action as described at Sec. 86.11(a)(1).
(6) Constructing, renovating, or maintaining boating infrastructure
for:
(i) Shops, stores, food service, other retail businesses, or
lodging;
(ii) Facility administration or management, such as a
harbormaster's or dockmaster's office; or
(iii) Transportation, storage, or services for boats on dry land,
such as dry docks, haul-outs, and boat maintenance and repair shops.
(7) Purchasing or operating service boats to transport boaters to
and from mooring areas.
(8) Marketing. Examples of ineligible marketing actions include:
(i) Giveaway items promoting the business or agency;
(ii) General marina or agency newsletters or Web sites promoting
the marina or agency;
(iii) Exhibits at trade shows promoting anything other than the
BIG-funded facility; and
(iv) Outreach efforts directed at the marina as a business or the
agency as a whole and not focused on BIG or the BIG-funded facility.
(9) Constructing, renovating, or maintaining boating infrastructure
that does not:
(i) Include design features as described at Sec. 86.13;
(ii) Serve eligible vessels or users; and
(iii) Allow public access as described at Sec. 86.92.
(10) Purchase of supplies and other expendable personal property
not directly related to achieving the project objectives.
(b) Other activities may be ineligible for BIG funding if they are
inconsistent with the:
(1) Purpose of BIG; or
(2) Applicable Cost Principles at 2 CFR part 200, subpart F.
Sec. 86.17 Who must own the site of a BIG-funded facility?
(a) You or another entity approved by us must own or have a legal
right to operate the site of a BIG-funded facility. If you are not the
owner, you must be able to show, before we approve your grant, that
your contractual arrangements with the owner of the site will ensure
that the owner will use the BIG-funded facility for its authorized
purpose for its useful life.
(b) Subgrantees or concessioners may be a local or tribal
government, a nonprofit organization, a commercial enterprise, an
institution of higher education, or a State agency other than the
agency receiving the grant.
(c) Subgrantees that are commercial enterprises are subject to 2
CFR part 200, subparts A through D, for grant administrative
requirements.
Sec. 86.18 How can I ensure that a BIG-funded facility continues to
serve its intended purpose for its useful life?
(a) When you design and build your BIG-funded facility, you must
consider the features, location, materials, and technology in reference
to the geological, geographic, and climatic factors that may have an
impact on its useful life.
(b) You must record the Federal interest in real property that
includes a BIG-funded capital improvement according to the assurances
required in the grant application and guidance from the Regional WSFR
Office.
(c) If we direct you to do so, you must require that subgrantees
record the Federal interest in real property that includes a BIG-funded
capital improvement.
(d) If we do not direct you to act as required by paragraph (c) of
this section, you may require subgrantees to record the Federal
interest in real property that includes a BIG-funded capital
improvement.
(e) You must state in your subaward that subgrantees must not alter
the ownership, purpose, or use of the BIG-funded facility as described
in the project statement without the approval of you and the WSFR
Regional Office.
(f) You may impose other requirements on subgrantees, as allowed by
law, to reduce State liability for the BIG-funded facility. Examples
are insurance, deed restrictions, and a security interest agreement,
which uses subgrantee assets to secure performance under the grant.
Sec. 86.19 What if a BIG-funded facility would benefit both eligible
and ineligible users?
You may assign any share of the costs to the BIG grant only if the
BIG-funded facility or a discrete element of the BIG-funded facility
benefits only eligible users. If a cost does not exclusively benefit
eligible users, you must allocate costs accordingly. A discrete element
has a distinct purpose, such as a fuel station, pumpout facility,
breakwater, or dock system.
(a) You must clearly show and explain in the project statement:
(1) The anticipated benefits of each project, discrete elements,
and major components;
(2) The breakdown of costs, as described at Sec. 86.43(i),
including the basis or method you use to allocate costs between
eligible and ineligible users; and
(3) Your reasoning in determining how to allocate costs, based on
paragraphs (a) through (e) of this section and any other guidance in
the annual NOFO.
(b) After you submit the application, if we do not agree with your
cost allocation using paragraph (a) of this section, we will contact
you. We may ask you to clarify your information. If we do not agree
that the allocation is equitable, we may negotiate an equitable
allocation. We must be able to agree that you are appropriately
allocating costs between eligible and ineligible users based on the
expected use before we consider your application for award.
(c) If a proposed BIG-funded facility, or a discrete element, minor
component, or single action of the BIG-funded project, gives a
secondary or minimal benefit to all users, we will not require you to
allocate costs between eligible and ineligible users for that benefit.
Examples of how we will apply this rule are:
(1) The primary purpose is to benefit eligible users directly, with
the secondary benefit for both eligible and ineligible users. You must
clearly state the exclusive benefit to eligible users in your
application. The secondary benefit cannot exclude eligible users from
the primary purpose. For example, if you construct a dock system for
exclusive use by eligible vessels and a secondary benefit of the dock
system is protection of the marina from wave action, you would not have
to allocate costs for the secondary benefit. However, the secondary
benefit cannot be docking for ineligible vessels because it would
exclude eligible users from the primary purpose.
(2) The secondary benefit to ineligible users is not the primary
purpose, is minimal, and you do not add special features to accommodate
ineligible users. For example, you do not have to allocate costs
between user groups for a gangway from the transient dock, designed
exclusively for eligible users, even though it is accessible to the
general public. However, if you construct the gangway to accommodate
the expected ineligible users, then you must allocate costs between
user groups.
(3) The expected benefits to both eligible and ineligible users
have minimal value. If the component has a value of .0025 percent or
less than the maximum available Federal award plus required match, you
do not have to allocate costs for that component. We will post the
amount of the minimal value each year in the annual NOFO. For example,
if the total maximum Federal award and required match for a BIG Tier
2--National project is $2 million, you do not have to allocate costs
between user groups for any
[[Page 26166]]
discrete project element, component, or action with a value of $5,000
or less.
(d) Examples of actions for which you must allocate costs between
user groups are the following, unless paragraph (b) of this section
applies:
(1) You propose a 200-foot dock for eligible user tie-up spaces
that you attach to the shore at a boat launch. It will attract
ineligible use as a tie-up for boaters as they enter and exit the
water. You must allocate costs between the expected eligible and
ineligible use.
(2) You propose a breakwater, fuel station, pumpout station,
restroom, dredging, navigational aids, or other multiuse or
multipurpose action.
(e) Examples of actions for which you do not need to allocate costs
between user groups are:
(1) You propose to construct, renovate, or maintain docks
specifically for eligible vessels.
(2) You propose to produce information and educational materials
specific to BIG.
(f) You must clearly inform boaters when access by ineligible users
is limited or restricted following the guidance at Sec. 86.94.
(g) We may ask you to clarify or change how you allocate costs in
your grant application if they do not meet our standards. We may reject
costs or applications that do not allocate costs between eligible and
ineligible users according to the requirements of this section and the
NOFO.
Subpart C--Federal Funds and Match
Sec. 86.30 What is the source of BIG funds?
(a) BIG receives Federal funding as a percentage of the annual
revenues to the Sport Fish Restoration and Boating Trust Fund (Trust
Fund) [26 U.S.C. 4161(a), 4162, 9503(c), and 9504].
(b) The Trust Fund receives revenue from sources including:
(1) Excise taxes paid by manufacturers on sportfishing equipment
and electric outboard motors;
(2) Fuel taxes attributable to motorboats and nonbusiness use of
small-engine power equipment; and
(3) Import duties on fishing tackle, yachts, and pleasure craft.
Sec. 86.31 How does the Service know how much money will be available
for BIG grants each year?
(a) We estimate funds available for BIG grants each year based on
the revenue projected for the Trust Fund. We include this estimate when
we issue a NOFO at https://www.grants.gov.
(b) We calculate the actual amount of funds available for BIG
grants based on tax collections, any funds carried over from previous
fiscal years, and available unobligated BIG funds.
Sec. 86.32 What are the match requirements?
(a) The Act requires that you or another non-Federal partner must
pay at least 25 percent of eligible and allowable BIG-funded facility
costs. We must waive the first $200,000 of the required match for each
grant to the Commonwealth of the Northern Mariana Islands and the
territories of American Samoa, Guam, and the U.S. Virgin Islands (48
U.S.C. 1469a).
(b) Match may be cash contributed during the funding period or in-
kind contributions of personal property, structures, and services
including volunteer labor, contributed during the period of
performance.
(c) Match must be:
(1) Necessary and reasonable to achieve project objectives;
(2) An eligible activity or cost;
(3) From a non-Federal source, unless you show that a Federal
statute authorizes the specific Federal source for use as match; and
(4) Consistent with 2 CFR 200.29 and 200.306, and any other
applicable sections of 2 CFR part 200. This includes any regulations or
policies that replace or supplement 2 CFR part 200.
(d) Match must not include:
(1) An interest in land or water;
(2) The value of any structure completed before the beginning of
the period of performance, unless the Service approves the activity as
a preaward cost;
(3) Costs or in-kind contributions that have been or will be
counted as satisfying the cost-sharing or match requirement of another
Federal grant, a Federal cooperative agreement, or a Federal contract,
unless authorized by Federal statute; or
(4) Any funds received from another Federal source, unless
authorized by Federal statute.
Sec. 86.33 What information must I give on match commitments, and
where do I give it?
(a) You must give information on the amount and the source of match
for your proposed BIG-funded facility on the standard grant application
form at https://www.grants.gov.
(b) You must also give information on the match commitment by the
State, a subgrantee, or other third party in the project statement
under ``Match and Other Contributions.''
(c) In giving the information required at paragraph (b) of this
section, you must:
(1) State the amount of matching cash;
(2) Describe any matching in-kind contributions;
(3) State the estimated value of any in-kind contributions; and
(4) Explain the basis of the estimated value.
Sec. 86.34 What if a partner is not willing or able to follow through
on a match commitment?
(a) You are responsible for all activity and funding commitments in
the grant application. If you discover that a partner is not willing or
able to meet a grant commitment, you must notify us that you will
either:
(1) Replace the original partner with another partner who will
deliver the action or the funds to fulfill the commitment as stated in
the grant application; or
(2) Give either cash or an in-kind contribution(s) that at least
equals the value and achieves the same objective as the partner's
original commitment of cash or in-kind contribution.
(b) If a partner is not willing or able to meet a match commitment
and you do not have enough money to complete the BIG-funded facility as
proposed, you must follow the requirements at Sec. Sec. 86.44 and
86.100.
Subpart D--Application for a Grant
Sec. 86.40 What are the differences between BIG Tier 1--State grants
and BIG Tier 2--National grants?
[[Page 26167]]
Comparison of BIG Tier 1--State and BIG Tier 2--National Grants
------------------------------------------------------------------------
BIG Tier 2--
BIG Tier 1--State National
------------------------------------------------------------------------
(a) What actions are eligible Those listed at Those listed at
for funding? Sec. 86.11. Sec. 86.11
except Sec.
86.11(a)(7).
(b) What is the amount of Each year we make We may limit
Federal funds I can receive in at least $200,000 funding to a
one BIG grant? available to each maximum award of
State. We may $1.5 million. We
increase the may increase the
award that States maximum funding
may request you may request
annually to an if enough funds
amount above are available and
$200,000 if it is
enough funds are advantageous to
available and it the program
is advantageous mission. We
to the program announce each
mission. We year in the
announce each annual NOFO
year in the posted at https://
annual NOFO www.grants.gov
posted at https:// the recommended
www.grants.gov maximum Federal
the maximum funds you may
Federal funds you request.
may request.
(c) How many grant applications Each State can No limit.
can I submit each year? only request up
to the annual
funding limit
each year. You
can do this by
sending in one
grant application
with one project
or multiple
projects. The
Regional WSFR
Office may ask a
State with
multiple projects
to prepare a
separate grant
request for each
project, as long
as the total of
all projects does
not exceed the
annual funding
limit.
(d) How does the Service choose We fund a single We score each
grant applications for funding? grant or multiple grant application
grants per State according to
up to the maximum ranking criteria
annual funding at Sec. 86.51.
amount for that We recommend
year. applications,
based on scores
and available
funding, to the
Director. The
Director selects
the applications
for award.
------------------------------------------------------------------------
Sec. 86.41 How do I apply for a grant?
(a) If you want to apply to be a subgrantee, you must send an
application to the State agency that manages BIG following the rules
given by your State. We award BIG funds only to States.
(b) The director of your State agency (see Sec. 86.10) or an
authorized representative must certify all standard forms submitted in
the grant application process in the format that we designate.
(c) States must submit a grant application through https://www.grants.gov. The Catalog of Federal Domestic Assistance (CFDA)
number for BIG is 15.622.
(d) If your State supports Executive Order 12372, Intergovernmental
Review of Federal Programs, you must send copies of all standard forms
and supporting information to the State Clearinghouse or Single Point
of Contact identified at https://www.whitehouse.gov/omb/grants_spoc/
before sending it through https://www.grants.gov.
Sec. 86.42 What do I have to include in a grant application?
(a) When you submit a BIG grant application, you must include
standard forms, a BIG project statement as described at Sec. 86.43,
documents, maps, images, and other information asked for in the annual
NOFO at https://www.grants.gov, CFDA 15.622, in the format we ask for.
(b) You must include supporting documentation explaining how the
proposed work complies with applicable laws and regulations. You must
also state the permits, evaluations, and reviews you need to complete
the project. After we approve your project, you will follow guidance at
Sec. 86.61 to complete requirements that will become part of your
application.
(c) After we review your application, any responses to our requests
to give more information or to clarify information become part of the
application.
(d) Misrepresentations of the information you give in an
application may be a reason for us to:
(1) Reject your application; or
(2) Terminate your grant and require repayment of Federal funds
awarded.
Sec. 86.43 What information must I put in the project statement?
You must put the following information in the project statement:
(a) Need. Explain why the project is necessary and how it fulfills
the purpose of BIG. To demonstrate the need for the project you must:
(1) For construction projects, describe existing facilities
available for eligible vessels near the proposed project. Support your
description by including images that show existing structures and
facilities, the proposed BIG-funded facility, and relevant details,
such as the number of transient slips and the amenities for eligible
users.
(2) Describe how the proposed project fills a need or offers a
benefit not offered by the existing facilities identified at paragraph
(a)(1) of this section.
(3) Give information to support the number of transient boats
expected to use the area of the proposed project and show that the
existing facilities identified at paragraph (a)(1) of this section are
not enough to support them.
(b) Purpose. State the desired outcome of the project in general or
abstract terms, but in such a way that we can review the information
and apply it to the competitive review. Base the purpose on the need as
described in paragraph (a) of this section.
(c) Objectives. Identify specific, measurable, attainable,
relevant, and time-bound (SMART) outputs related to the need you are
addressing.
(d) Results or benefits expected. (1) Describe each capital
improvement, service, or other product that will result from the
project, and its purpose.
(2) Describe how the structures, services, or other products will:
(i) Achieve the need described at paragraph (a) of this section;
and
(ii) Benefit eligible users.
(e) Approach. (1) Describe the methods to be used to achieve the
objectives. Show that you will use sound design and proper procedures.
Include enough information on the status of needed permits, land use
approvals, and other compliance requirements for us to make a
preliminary assessment.
(2) Give the name, contact information, qualifications, and role of
each known concessioner or subgrantee.
(3) Explain how you will exercise control to ensure the BIG-funded
facility continues to achieve its authorized
[[Page 26168]]
purpose during the useful life of the BIG-funded project.
(f) Useful life. Estimate the useful life in years of each capital
improvement for the proposed project. Explain how you estimated the
useful life of each capital improvement. You must reference a generally
accepted method used to determine useful life of a capital improvement.
You will finalize useful life during the approval process. See
Sec. Sec. 86.73 and 86.74.
(g) Geographic location. (1) State the location using Global
Positioning System (GPS) coordinates in the format we ask for in the
annual NOFO.
(2) State the local jurisdiction (county, city, town, or
equivalent), street address, and water body associated with the
project.
(3) Include maps in your application, such as:
(i) A small State map that shows the general location of the
project;
(ii) A local map that shows the facility location and the nearest
community, public road, and navigable water body; and
(iii) Maps or images that show proximity to significant
destinations, services that support eligible users, terrain
considerations, access, or other information applicable to your
project.
(iv) Any other map that supports the information in the project
statement.
(h) Project officer. If the Federal Aid Coordinator for the State
agency will be the project officer, enter the term State Federal Aid
Coordinator under this heading. If the State Federal Aid Coordinator
will not be the project officer, give the name, title, work address,
work email, and work telephone number of the contact person. The
project officer identified should have a detailed knowledge of the
project. State whether the project officer has the authority to sign
requests for prior approval, project reports, and other communications
committing the grantee to a course of action.
(i) Budget narrative. Provide costs and other information
sufficient to show that the project will result in benefits that
justify the costs. You must use reasonably available resources to
develop accurate cost estimates for your project to insure the
successful completion of your BIG-funded facility. You should discuss
factors that would influence project costs as described at Sec.
86.53(d). Costs must be necessary and reasonable to achieve the project
objectives.
(1) You must state how you will allocate costs between eligible and
ineligible users following the requirements at Sec. 86.19 and explain
the method used to allocate costs equitably between anticipated
benefits for eligible and ineligible users.
(2) State sources of cash and in-kind values you include in the
project budget.
(3) Describe any item that has cost limits or requires our approval
and estimate its cost or value. Examples are dredging and preaward
costs.
(j) Match and other partner contributions. Identify the cash and
in-kind contributions that you, a partner, or other entity contribute
to the project and describe how the contributions directly and
substantively benefits completion of the project. See Sec. Sec. 86.32
and 86.33 for required information.
(k) Fees and program income, if applicable. (1) See Sec. 86.90 for
the information that you must include on the estimated fees that an
operator will charge during the useful life of the BIG-funded facility.
(2) See Sec. Sec. 86.77 and 86.78 for an explanation of how you
may use program income. If you decide that your project is likely to
generate program income during the period of performance, you must:
(i) Estimate the amount of program income that the project is
likely to generate; and
(ii) Indicate how you will apply program income to Federal and non-
Federal outlays.
(l) Relationship with other grants. Describe the relationship
between the BIG-funded facility and other relevant work funded by
Federal and non-Federal grants that is planned, expected, or in
progress.
(m) Timeline. Describe significant milestones in completing the
project and any accomplishments to date.
(n) General. (1) If you seek a waiver based on Sec. 86.13(b), you
must include the request and supporting information in the grant
application following the instructions in the annual NOFO.
(2) Include any other description or document we ask for in the
annual NOFO or that you need to support your proposed project.
(o) Ranking criteria. In BIG Tier 2--National applications, you
must respond to each of the questions found in the ranking criteria at
Sec. 86.51. We also publish the questions for these criteria in the
annual NOFO at https://www.grants.gov.
(1) In addressing the ranking criteria, refer to the information at
Sec. Sec. 86.52 through 86.60 and any added information we ask for in
the annual NOFO.
(2) You may give information relevant to the ranking criteria as
part of the project statement. If you take this approach, you must
reference the criterion and give supporting information to reflect the
guidance at Sec. Sec. 86.52 through 86.60.
Sec. 86.44 What if I need more than the maximum Federal share and
required match to complete my BIG-funded project?
(a) If you plan a BIG project that you cannot complete with the
recommended maximum Federal award and the required match, you may:
(1) Find other sources of non-Federal funds to complete the
project;
(2) Divide your larger project into smaller, distinct, stand-alone
projects and apply for more than one BIG grant, either in the same year
or in different years. One project cannot depend on the anticipated
completion of another; or
(3) Combine your BIG Tier 1--State and BIG Tier 2--National funding
to complete a project at a single location.
(b) If you are awarded a grant and find you cannot complete a BIG
project with the Federal funds and required match, you may:
(1) Find other sources of non-Federal funds to complete the
project.
(2) Consider if BIG Tier 1--State funds are available to help
complete the project. This is not a guaranteed option.
(3) Ask for approval to revise the grant by following the
requirements at subpart H of this part.
(c) For BIG Tier 2--National grants, we review and rank each
application individually, and each must compete with other applications
for the same award year.
(d) If you receive a BIG grant for one of your applications, we do
not give preference to other applications you submit.
(e) If you do not complete your project, we may take one or more of
the remedies for noncompliance found at 2 CFR 200.338, and any other
regulations that apply.
Sec. 86.45 If the Service does not select my grant application for
funding, can I apply for the same project the following year?
Yes. If we do not select your BIG grant application for funding,
you can apply for the same project the following year or in later
years.
Sec. 86.46 What changes can I make in a grant application after I
submit it?
(a) After you submit your grant application, you can add or change
information up to the date and time that the applications are due.
(b) After the application due date and before we announce selected
projects, you can add or change information in your application only if
it does not affect the scope of the project, would not affect the score
of the application,
[[Page 26169]]
and is not a correction (see paragraph (c) of this section).
(1) During this period we may ask you to change the useful life
following the requirements at Sec. 86.74 or allocation of costs
between users of the BIG project following the requirements at Sec.
86.19.
(2) If your application proposes using BIG funds for an action we
identify as ineligible, we will decide on a case-by-case basis whether
we will allow you to change your application to remove identified
ineligible costs and if we will consider your application for funding.
(c) You must inform us of any incorrect information in an
application as soon as you discover it, either before or after
receiving an award.
(d) We may ask you at any point in the application process to:
(1) Clarify, correct, explain, or supplement data and information
in the application;
(2) Justify the eligibility of a proposed action; or
(3) Justify the allowability of proposed costs or in-kind
contributions.
(e) If you do not respond fully to our questions at paragraph (d)
of this section in the time allotted, we may decide not to consider
your application for funding.
(f) If your application is competitive, but funding is limited and
we cannot fully fund your project, we may tell you the amount of
available funds and ask you if you wish to accept the reduced funding
amount. We will decide on a case-by-case basis if we will consider
changes to the scope of your project based on the reduced funding. Any
changes to the scope of a project must not result in reducing the
number of points enough to lower your project's ranking position. If
you choose to accept the reduced amount, you must amend your
application to reflect all changes, including the difference in Federal
and non-Federal funding.
Subpart E--Project Selection
Sec. 86.50 Who ranks BIG Tier 2--National grant applications?
We assemble a panel of our professional staff to review, rank, and
recommend grant applications for funding to the Director. This panel
may include representatives of our Regional Offices, with Headquarters
staff overseeing the review, ranking, and recommendation process.
Following the requirements of the Federal Advisory Committee Act (5
U.S.C. Appendix), the Director may invite nongovernmental organizations
and other non-Federal entities to take part in an advisory panel to
make recommendations to the Director.
Sec. 86.51 What criteria does the Service use to evaluate BIG Tier
2--National applications?
Our panel of professional staff and any invited participants
evaluate BIG Tier 2--National applications using the ranking criteria
in the following table and assign points within the range for each
criterion. We may give added information to guide applicants regarding
these criteria in the annual NOFO on https://www.grants.gov. This may
include the minimum total points that your application must receive in
order to qualify for award.
------------------------------------------------------------------------
Ranking criteria Points
-------------------------------------------------------------------
(a) Need, Access, and Cost 20 total possible points............
Efficiency.
(1) Will the proposed 0-10................................
boating infrastructure
meet a need for more or
improved facilities?.
(2) Will eligible users 0-7.................................
receive benefits from
the proposed boating
infrastructure that
justify the cost of the
project?.
(3) Will the proposed 0-3.................................
boating infrastructure
accommodate boater
access to significant
destinations and
services that support
transient boater
travel?.
(b) Match and Partnerships.. 10 total possible points............
(1) Will the proposed 0-7.................................
project include
private, local, or
State funds greater
than the required
minimum match?.
(2) Will the proposed 0-3.................................
project include
contributions by
private or public
partners that
contribute to the
project objectives?.
(c) Innovation.............. 6 total possible points.............
(1) Will the proposed 0-3.................................
project include
physical components,
technology, or
techniques that improve
eligible-user access?.
(2) Will the proposed 0-2.................................
project include
innovative physical
components, technology,
or techniques that
improve the BIG-funded
project?.
(3) Has the facility 0-1.................................
where the project is
located demonstrated a
commitment to
environmental
compliance,
sustainability, and
stewardship and has an
agency or organization
officially recognized
the facility for its
commitment?.
-------------------------------------------
(d) Total possible points... 36..................................
------------------------------------------------------------------------
Sec. 86.52 What does the Service consider when evaluating a project
on the need for more or improved boating infrastructure?
In evaluating a proposed project under the criterion at Sec. Sec.
86.51(a)(1) on the need for more or improved boating infrastructure
facilities, we consider whether the project will:
(a) Construct new boating infrastructure in an area that lacks it,
but where eligible vessels now travel or would travel if the project
were completed;
(b) Renovate a facility to:
(1) Improve its physical condition;
(2) Follow local building codes;
(3) Improve generally accepted safety standards; or
(4) Adapt it to a new purpose for which there is a demonstrated
need;
(c) Create accessibility for eligible vessels by reducing wave
action, increasing depth, or making other physical improvements;
(d) Expand an existing marina or mooring site that is unable to
accommodate current or projected demand by eligible vessels; or
(e) Make other improvements to accommodate an established eligible
need.
Sec. 86.53 What factors does the Service consider for benefits to
eligible users that justify the cost?
(a) We consider these factors in evaluating a proposed project
under the criterion at Sec. 86.51(a)(2) on whether benefits to
eligible users justify the cost:
(1) Total cost of the project;
(2) Total benefits available to eligible users upon completion of
the project; and
(3) Reliability of the data and information used to decide benefits
relative to costs.
(b) You must support the benefits available to eligible users by
clearly
[[Page 26170]]
describing them in the project statement and explaining how they relate
to Need at Sec. 86.43(a).
(c) We will consider the cost relevant to all benefits to eligible
users that are adequately supported in the application. We may consider
the availability of preexisting structures and amenities, but only in
the context of the need identified at Sec. 86.43(a).
(d) Describe in your application any factors that would influence
project costs, such as:
(1) The need for specialized materials to meet local codes, address
weather or terrain, or extend useful life;
(2) Increased transportation costs due to location; or
(3) Other factors that may increase costs, but whose actions
support needed benefits.
(e) Describe any costs that are associated with providing a harbor
of safe refuge.
Sec. 86.54 What does the Service consider when evaluating a project
on boater access to significant destinations and services that support
transient boater travel?
In evaluating a proposed project under the criterion on boater
access at Sec. 86.51(a)(3), we consider:
(a) The degree of access that the BIG-funded facility will give;
(b) The activity, event, or landmark that makes the BIG-funded
facility a destination, how well known the attraction is, how long it
is available, and how likely it is to attract boaters to the facility;
and
(c) The availability of services and safety near the BIG-funded
facility, how easily boaters can access them, and how well they serve
the needs of eligible users.
Sec. 86.55 What does the Service consider as a partner for the
purposes of these ranking criteria?
(a) The following may qualify as partners for purposes of the
ranking criteria:
(1) A non-Federal entity, including a subgrantee.
(2) A Federal agency other than the Service.
(b) The partner must commit to a financial contribution or an in-
kind contribution, or to take a voluntary action during the period of
performance.
(c) In-kind contributions or actions must be necessary and
contribute directly and substantively to the completion of the project.
You must explain in the grant application how they are necessary and
contribute to completing the project.
(d) A governmental entity may be a partner unless its contribution
to completing the project is a mandatory duty of the agency, such as
reviewing a permit application. A voluntary action by a government
agency or employee is a partnership.
Sec. 86.56 What does the Service consider when evaluating a project
that includes more than the minimum match?
(a) When we evaluate a project under the criterion for match at
Sec. 86.51(b)(1), we consider how much cash the applicant and partners
commit above the required minimum match of 25 percent of project costs.
(b) The contribution may be from a State, a single source, or any
combination of sources.
(c) We will award points as follows:
------------------------------------------------------------------------
Percent cash match Points
------------------------------------------------------------------------
26-30................................................... 1
31-35................................................... 2
36-40................................................... 3
41-45................................................... 4
46-50................................................... 5
51-80................................................... 6
81 or higher............................................ 7
------------------------------------------------------------------------
(d) We must waive the first $200,000 in match for the entities
described at Sec. 86.32(a). We will determine the required match by
subtracting the waived amount from the required 25 percent match and
award points using the table at paragraph (c) of this section.
Sec. 86.57 What does the Service consider when evaluating
contributions that a partner brings to a project?
(a) We consider these factors for partner contributions in
evaluating a proposed project under the criterion at Sec. 86.51(b)(2):
(1) The significance of the contribution to the success of the
project;
(2) How the contribution supports the actions proposed in the
project statement;
(3) How the partner demonstrates its commitment to the
contribution; and
(4) The ability of the partner to fulfill its commitment.
(b) We may consider the combined contributions of several partners,
according to the factors at paragraph (a) of this section.
(c) To receive consideration for this criterion, you must show in
your application how a partner, or group of partners, significantly
supports the project by addressing the factors in paragraph (a) of this
section.
(d) You may describe partner contributions in the project
statement.
(e) Under this criterion, partner contributions need not exceed the
25 percent required match.
Sec. 86.58 What does the Service consider when evaluating a project
for a physical component, technology, or technique that will improve
eligible user access?
(a) In evaluating a proposed project under the criterion at Sec.
85.51(c)(1), we consider whether the project will increase the
availability of the BIG-funded facility for eligible users or improve
eligible boater access to the facility by:
(1) Using a new technology or technique; or
(2) Applying a new use of an existing technology or technique.
(b) We will not award points for following access standards set by
law.
(c) We will consider if you choose to complete the project using an
optional or advanced technology or technique that will improve access,
or if you go beyond the minimum requirements.
(d) To receive consideration for this criterion, you must describe
in the grant application the current standard and how you will exceed
the standard.
Sec. 86.59 What does the Service consider when evaluating a project
for innovative physical components, technology, or techniques that
improve the BIG project?
(a) In evaluating a proposed project under the criterion at Sec.
86.51(c)(2), we consider if the project will include physical
components, technology, or techniques that are:
(1) Newly available; or
(2) Repurposed in a unique way.
(b) Examples of the type of innovations we will consider are
components, technology, or techniques that:
(1) Extend the useful life of the BIG-funded project;
(2) Are designed to allow the operator to save costs, decrease
maintenance, or improve operation;
(3) Are designed to improve BIG-eligible services or amenities;
(4) Reduce the carbon footprint of the BIG-funded facility. Carbon
footprint means the impact of the total set of greenhouse gas
emissions;
(5) Are used during construction specifically to reduce negative
environmental impacts, beyond compliance requirements; or
(6) Improve facility resilience.
Sec. 86.60 What does the Service consider when evaluating a project
for demonstrating a commitment to environmental compliance,
sustainability, and stewardship?
(a) In evaluating a project under the criterion at Sec.
86.51(c)(3), we consider if the application documents that the facility
where the BIG-funded project is located has received official
recognition for its voluntary commitment to
[[Page 26171]]
environmental compliance, sustainability, and stewardship by exceeding
regulatory requirements.
(b) The official recognition must be part of a voluntary,
established program administered by a Federal or State agency, local
governmental agency, Sea Grant or equivalent entity, or a State or
Regional marina organization.
(c) The established program must require the facility to use
management and operational techniques and practices that will ensure it
continues to meet the high standards of the program and must contain a
component that requires periodic review.
(d) The facility must have met the criteria required by the
established program and received official recognition by the due date
of the application.
Sec. 86.61 What happens after the Director approves projects for
funding?
(a) After the Director approves projects for funding, we notify
successful applicants of the:
(1) Amount of the grant;
(2) Documents or clarifications required, including those required
for compliance with applicable laws and regulations;
(3) Approvals needed and format for processing approvals; and
(4) Time constraints.
(b) After we receive the required forms and documents, we approve
the project and the terms of the grant and obligate the grant in the
Federal financial management system.
(c) BIG funds are available for Federal obligation for 3 Federal
fiscal years, starting October 1 of the fiscal year that funds become
available for award. We do not make a Federal obligation until you meet
the grant requirements. Funds not obligated within 3 fiscal years are
no longer available.
Subpart F--Grant Administration
Sec. 86.70 What standards must I follow when constructing a BIG-
funded facility?
(a) You must design and build a BIG-funded facility so that each
structure meets Federal, State, and local standards.
(b) A Region or a State may require you to have plans reviewed by a
subject-matter expert if there are questions as to the safety,
structural stability, durability, or other construction concerns for
projects that will cost more than $100,000.
Sec. 86.71 How much time do I have to complete the work funded by a
BIG grant?
(a) We must obligate a grant within 3 Federal fiscal years of the
beginning of the Federal fiscal award year.
(b) We will work with you to set a start date within the 3-year
period of obligation. We assign a period of performance that is no
longer than 3 years from the grant start date.
(c) You must complete your project within the period of performance
unless you ask for and receive a grant extension.
Sec. 86.72 What if I cannot complete the project during the period of
performance?
(a) If you cannot complete the project during the 3-year period of
performance, you may ask us for an extension. Your request must be in
writing, and we must receive it before the end of the original period
of performance.
(b) An extension is considered a revision of a grant and must
follow guidance at Sec. 86.101.
(c) We will approve an extension up to 2 years if your request:
(1) Describes in detail the work you have completed and the work
that you plan to complete during the extension;
(2) Explains the reasons for delay;
(3) Includes a report on the status of the project budget; and
(4) Includes assurance that you have met or will meet all other
terms and conditions of the grant.
(d) If you cannot complete the project during the extension period,
you may ask us for a second extension. Your request must be in writing,
and we must receive it before the end of the first extension. Your
request for a second extension must include all of the information
required at paragraph (b) of this section and, it must show that:
(1) The extension is justified;
(2) The delay in completion is not due to inaction, poor planning,
or mismanagement; and
(3) You will achieve the project objectives by the end of the
second extension.
(e) We require that the Regional Director and the Service's
Assistant Director for the Wildlife and Sport Fish Restoration Program
approve requests to extend a project beyond 5 years of the grant start
date.
Sec. 86.73 How long must I operate and maintain a BIG-funded
facility, and who is responsible for the cost of facility operation and
maintenance?
(a) You must operate and maintain a BIG-funded facility for its
authorized purpose for its useful life. See Sec. Sec. 86.3, 86.43(f),
and 86.74.
(b) Catastrophic events may shorten the useful life of a BIG-funded
facility. If it is not feasible or is cost-prohibitive to repair or
replace the BIG-funded facility, you may ask to revise the grant to
reduce the useful-life obligation.
(c) You are responsible for the costs of the operation and
maintenance of the BIG-funded facility for its useful life, except as
allowed at Sec. 86.14(b).
Sec. 86.74 How do I determine the useful life of a BIG-funded
facility?
You must determine the useful life of your BIG-funded project using
the following:
(a) You must give an informed estimate of the useful life of the
BIG-funded project in your grant application, including the information
in Steps 1, 2, and 3, in paragraphs (a)(1) through (3) of this section,
as applicable.
(1) Step 1. Identify all capital improvements that are proposed in
your project. We may reject your application if you do not include an
estimate for useful life.
(i) Use the definition of capital improvement at Sec. 86.3.
(ii) The capital improvement must be a structure or system that
serves an identified purpose.
(iii) Consider the function of the components in your application
and group those with a similar purpose together as structures or
systems.
(iv) All auxiliary components of your project (those that are not
directly part of the structure or system) must be identified as
necessary for the continued use of an identified capital improvement.
For example, a gangway is not part of the dock system, but is necessary
for access to and from the dock system, so it could be included in the
useful life of the dock system.
(v) Attach an auxiliary component as identified at paragraph
(a)(1)(iv) of this section to only one capital improvement. If it
supports more than one, choose the one with the longest useful life.
(vi) Examples of structures or systems that could potentially make
up a single capital improvement are a: Rest room/shower building; dock
system; breakwater; seawall; basin, as altered by dredging; or fuel
station.
(2) Step 2. Estimate the useful life of each capital improvement
identified in Step 1 in paragraph (a)(1) of this section.
(i) State how you determine the useful life estimate.
(ii) Identify factors that may influence the useful life of the
identified capital improvement, such as: Marine environment, wave
action, weather conditions, and heavy usage.
(iii) Examples of sources to obtain estimates for useful life
information when developing your application are: Vendors, engineers,
contractors, or others with expertise or experience with a capital
improvement.
(3) Step 3. If you are asking us to consider additional points for
a physical
[[Page 26172]]
component, technology, or technique under the criterion at Sec.
86.51(c) that will increase the useful life, you must describe in your
application:
(i) The capital improvement or component that you will apply the
criterion at Sec. 86.51(c) to;
(ii) The expected increase in useful life;
(iii) The sources of information that support your determination of
an extended useful life; and
(iv) A description of how you expect the useful life will be
increased.
(b) After you submit your application, but before we award your
grant, you must:
(1) Confirm the useful life for each capital improvement using a
generally accepted method.
(2) Provide any additional documents or information, if we request
it.
(3) Consult and obtain agreement for your final useful life
determinations at the State or Regional level, or both.
(4) Revise your application, as needed, to include the final useful
life determination(s).
(c) If we find before we award the grant that you are unable to
support your determination of an extended useful life at Sec.
86.51(c), we will reduce your score and adjust the ranking of
applications accordingly.
(d) You must finalize useful life in your grant by one of the
following methods:
(i) State several useful-life expectations, one for each individual
capital improvement you identified at paragraph (a)(1) of this section;
or
(ii) State a single useful life for the whole project, based on the
longest useful life of the capital improvements you identified at
paragraph (a)(1) of this section.
(e) States may decide to use only one of the methods described at
paragraph (d) of this section for all BIG-funded projects in their
State.
Sec. 86.75 How should I credit BIG?
(a) You must use the Sport Fish Restoration logo to show the source
of BIG funding:
[GRAPHIC] [TIFF OMITTED] TR06MY15.000
(b) Examples of language you may use to credit BIG are:
(1) A Sport Fish Restoration-Boating Infrastructure Grant funded
this facility thanks to your purchase of fishing equipment and
motorboat fuel.
(2) A Sport Fish Restoration-Boating Infrastructure Grant is
funding this construction thanks to your purchase of fishing equipment
and motorboat fuel.
(3) A Sport Fish Restoration-Boating Infrastructure Grant funded
this pamphlet thanks to your purchase of fishing equipment and
motorboat fuel.
(c) States may ask for approval of alternative language to follow
ordinances and restrictions for posting information where the project
is located.
Sec. 86.76 How can I use the logo for BIG?
(a) You must use the Sport Fish Restoration logo on:
(1) BIG-funded facilities;
(2) Printed or Web-based material or other visual representations
of BIG projects or achievements; and
(3) BIG-funded or BIG-related educational and informational
material.
(b) You must require a subgrantee to display the logo in the places
and on materials described at paragraph (a) of this section.
(c) Businesses that contribute to or receive from the Trust Fund
that we describe at Sec. 86.30 may display the logo in conjunction
with its associated products or projects.
(d) The Assistant Director or Regional Director may authorize other
persons, organizations, agencies, or governments not identified in this
section to use the logo for purposes related to BIG by entering into a
written agreement with the user. The user must state how it intends to
use the logo, to what it will attach the logo, and the relationship to
BIG.
(e) The Service and the Department of the Interior make no
representation or endorsement whatsoever by the display of the logo as
to the quality, utility, suitability, or safety of any product,
service, or project associated with the logo.
(f) The user of the logo must indemnify and defend the United
States and hold it harmless from any claims, suits, losses, and damages
from:
(1) Any allegedly unauthorized use of any patent, process, idea,
method, or device by the user in connection with its use of the logo,
or any other alleged action of the user; and
(2) Any claims, suits, losses, and damages arising from alleged
defects in the articles or services associated with the logo.
(g) No one may use any part of the logo in any other manner unless
the Service's Assistant Director for Wildlife and Sport Fish
Restoration or Regional Director authorizes it. Unauthorized use of the
logo is a violation of 18 U.S.C. 701 and subjects the violator to
possible fines and imprisonment.
Sec. 86.77 How must I treat program income?
(a) You must follow the applicable program income requirements at 2
CFR 200.80 and 200.307 if you earn program income during the period of
performance.
(b) We authorize the following options in the regulations cited at
paragraph (a) of this section:
(1) You may deduct the costs of generating program income from the
gross income if you did not charge these costs to the grant. An example
of costs that may qualify for deduction is maintenance of the BIG-
funded facility that generated the program income.
(2) Use the addition alternative for program income only if:
(i) You describe the source and amount of program income in the
project statement according to Sec. 86.43(k)(2); and
(ii) We approve your proposed use of the program income, which must
be for one or more of the actions eligible for funding at Sec. 86.11.
(3) Use the deduction alternative for program income that does not
qualify under paragraph (b)(2) of this section.
(c) We do not authorize the cost-sharing or matching alternative in
the regulations cited at paragraph (a) of this section.
(d) For BIG Tier 1-State grants with multiple projects that you may
complete at different times, we recommend that States seek our advice
on how to apply for and manage grants to reduce unintended program
income.
(e) If your project is completed before the end of the period of
performance, we recommend you notify us and ask for advice on how to
adjust the period of performance to manage potential program income.
Sec. 86.78 How must I treat income earned after the period of
performance?
You are not accountable to us for income earned by you or a
subgrantee after the period of performance as a result of the grant
except as required at Sec. Sec. 86.90 and 86.91.
Subpart G--Facility Operations and Maintenance
Sec. 86.90 How much must an operator of a BIG-funded facility charge
for using the facility?
(a) An operator of a BIG-funded facility must charge reasonable
fees for using the facility based on prevailing rates at other publicly
and privately owned local facilities similarly situated
[[Page 26173]]
and offering a similar service or amenity.
(b) If other publicly and privately owned local facilities offer
BIG-funded services or amenities free of charge, then a fee is not
required.
(c) If the BIG-funded facility has a State or locally imposed fee
structure, we will accept the mandated fee structure if it is
reasonable and does not impose an undue burden on eligible users.
(d) You must state proposed fees and the basis for the fees in your
grant application. The information you give may be in any format that
clearly shows how you arrived at an equitable amount.
Sec. 86.91 May an operator of a BIG-funded facility increase or
decrease user fees during its useful life?
(a) An operator of a BIG-funded facility may increase or decrease
user fees during its useful life without our prior approval if they are
consistent with prevailing market rates. The grantee may impose
separate restrictions on an operator or subgrantee.
(b) If the grantee or we discover that fees charged by the operator
of a BIG-funded facility do not follow Sec. 86.90 and the facility
unfairly competes with other marinas or makes excessive profits, the
grantee must notify the operator in writing. The operator must respond
to the notice in writing, and either justify or correct the fee
schedule. If the operator justifies the fee schedule, the grantee and
we must allow reasonable business decisions and only call for a change
in the fee schedule if the operator is unable to show that the increase
or decrease is reasonable.
Sec. 86.92 Must an operator of a BIG-funded facility allow public
access?
(a) Public access in this part means access by eligible users, for
eligible activities, or by other users for other activities that either
support the purpose of the BIG-funded project or do not interfere with
the purpose of the BIG-funded project. An operator of a BIG-funded
facility must not allow activities that interfere with the purpose of
the project.
(b) An operator of a BIG-funded facility must allow public access
to any part of the BIG-funded facility during its useful life, except
as described at paragraphs (e) and (f) of this section.
(c) An operator of a BIG-funded facility must allow reasonable
public access to other parts of the facility that would normally be
open to the public and must not limit access in any way that
discriminates against any member of the public.
(d) The site of a BIG-funded facility must be:
(1) Accessible to the public; and
(2) Open for reasonable periods.
(e) An operator may temporarily limit public access to all or part
of the BIG-funded facility due to an emergency, repairs, construction,
or as a safety precaution. (f) An operator may limit public access when
seasonally closed for business.
Sec. 86.93 May I prohibit overnight use by eligible vessels at a BIG-
funded facility?
You may prohibit overnight use at a BIG-funded facility if you
state in the approved grant application that the facility is only for
day use. If after we award the grant you wish to change to day use
only, you must follow the requirements at subpart H of this part.
Sec. 86.94 Must I give information to eligible users and the public
about BIG-funded facilities?
(a) You must give clear information using signs or other methods at
BIG-funded facilities that:
(1) Direct eligible users to the BIG-funded facility;
(2) Include restrictions and operating periods or direct boaters
where to find the information; and
(3) Restrict ineligible use at any part of the BIG-funded facility
designated only for eligible use.
(i) You do not need to notify facility users of any restrictions
for shared-use areas and amenities that you have already decided have
predictable mixed use and you have allocated following Sec. 86.19.
(ii) You must notify facility users of benefits that you decide are
only for eligible users, such as boat slips and moorage.
(b) You may use new technology and methods of communication to
inform boaters.
Subpart H--Revisions and Appeals
Sec. 86.100 Can I change the information in a grant application after
I receive a grant?
(a) To change information in a grant application after you receive
a grant, you must propose a revision of the grant and we must approve
it.
(b) We may approve a revision if:
(1) For BIG Tier 1--State and BIG Tier 2--National awards, the
revision:
(i) Would not significantly decrease the benefits of the project;
and
(ii) Would not increase Federal funds.
(2) For BIG Tier 2--National awards, the revision:
(i) Involves process, materials, logistics, or other items that
have no significant effect on the factors used to decide the score; and
(ii) Keeps an equal or greater percentage of the non-Federal
matching share of the total BIG project costs.
(c) We may approve a decrease in the Federal funds requested in the
application subject to paragraph (b) of this section.
(d) The Regional WSFR Office must follow its own procedures for
review and approval of any changes to a BIG Tier 1--State grant.
(e) The Regional WSFR Office must receive approval from the WSFR
Headquarters Office for any changes to a BIG Tier 2--National grant
that involves cost or affects project benefits.
Sec. 86.101 How do I ask for a revision of a grant?
(a) You must ask for a revision of a grant by sending us the
following documents:
(1) The standard form used to apply for Federal assistance, which
is available at https://www.grants.gov. You must use this form to update
or ask for a change in the information that you included in the
approved grant application. The authorized representative of your
agency must certify this form.
(2) A statement attached to the standard form at paragraph (a)(1)
of this section that explains:
(i) The proposed changes and how the revision would affect the
information that you submitted with the original grant application; and
(ii) Why the revision is necessary.
(b) You must send any revision of the scope to your State
Clearinghouse or Single Point of Contact if your State supports this
process under Executive Order 12372, Intergovernmental Review of
Federal Programs.
Sec. 86.102 Can I appeal a decision?
You can appeal the Director's, Assistant Director's, or Regional
Director's decision on any matter subject to this part according to 2
CFR 200.341.
(a) You must send the appeal to the Director within 30 calendar
days of the date that the Director, Assistant Director, or Regional
Director mails or otherwise informs you of a decision.
(b) You may appeal the Director's decision under paragraph (a) of
this section to the Secretary of the Interior within 30 calendar days
of the date that the Director mailed the decision. An appeal to the
Secretary must follow procedures at 43 CFR part 4, subpart G, ``Special
Rules Applicable to Other Appeals and Hearings.''
Sec. 86.103 Can the Director authorize an exception to this part?
The Director can authorize an exception to any requirement of this
part that is not explicitly required by
[[Page 26174]]
law if it does not conflict with other laws or regulations or the
policies of the Department of the Interior or the Office of Management
and Budget (OMB).
Subpart I--Information Collection
Sec. 86.110 What are the information-collection requirements of this
part?
OMB has reviewed and approved the U.S. Fish and Wildlife
information collection requirements (project narratives, reports, and
amendments) in this part and assigned OMB Control No. 1018-0109. We may
not conduct or sponsor and a person is not required to respond to a
collection of information unless it displays a currently valid OMB
control number. You may send comments on any aspect of the information
collection requirements to the Service Information Collection Clearance
Officer at the address provided at 50 CFR 2.1(b).
Dated: April 21, 2015.
Michael Bean,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2015-09961 Filed 5-5-15; 8:45 am]
BILLING CODE 4310-55-P