Financial Assistance: Wildlife Restoration, Sport Fish Restoration, Hunter Education and Safety, 44772-44788 [2019-18187]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 84, Number 166 (Tuesday, August 27, 2019)]
[Rules and Regulations]
[Pages 44772-44788]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-18187]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 80

[Docket No. FWS-HQ-WSR-2017-0002; 91400-5110-POLI-7B; 91400-9410-POLI-
7B]
RIN 1018-BA33


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, are issuing final 
regulations governing the Wildlife Restoration and Sport Fish 
Restoration financial assistance programs that include the Enhanced 
Hunter Education and Safety program and the Basic Hunter Education and 
Safety, Recreational Boating Access, Aquatic Resource Education, and 
Outreach and Communications subprograms. This final rule reflects 
targeted changes to the existing rule and is not a complete update. We 
proposed changes December 15, 2017, based on changes to law, 
regulation, policy, and practice since the last rulemaking in 2011. 
This final rule adds and updates definitions and eligible activities 
under these programs; simplifies requirements for license 
certification, especially for multiyear licenses; updates authorities; 
and clarifies how a grantee may use program income under an award. We 
reviewed all comments received during the comment period and made 
changes where necessary based on concerns and recommendations. We do 
not include all proposed changes in the final rule and will continue to 
work with partners to address those items in future policy or 
rulemaking.

DATES: The final rule is effective on September 26, 2019.

ADDRESSES: Comments received on the proposed rule may be viewed at 
www.regulations.gov in Docket No. FWS-HQ-WSR-2017-0002.

FOR FURTHER INFORMATION CONTACT: Lisa Van Alstyne, Wildlife and Sport 
Fish Restoration Program, Branch of Policy, U.S. Fish and Wildlife 
Service, 703-358-1942.

SUPPLEMENTARY INFORMATION: 

Background

    On December 15, 2017, we published in the Federal Register (82 FR 
59564) a proposal to revise 50 CFR part 80, ``Financial Assistance: 
Wildlife Restoration, Sport Fish Restoration, Hunter Education and 
Safety.'' The proposal provided a background for the Department of the 
Interior's (DOI) U.S. Fish and Wildlife Service (Service) management of 
financial assistance programs by the Service's Wildlife and Sport Fish 
Restoration Program (WSFR). The final rule revises title 50, part 80, 
of the Code of Federal Regulations (CFR). In addition to addressing 
topics that we identified since the 2011 rulemaking, the final rule 
includes revisions made to reflect the following laws and policies:
    (a) Uniform Administrative Requirements, Cost Principles, and Audit 
Requirements for Federal Awards, 2 CFR part 200, December 26, 2013.
    (b) Service Manual chapter 518 FW 1, ``Authorities and 
Responsibilities,'' July 25, 2014.
    (c) Service Manual chapter 519 FW 2, ``Compliance Requirements 
Summary,'' October 29, 2014.
    (d) Service Manual chapter 417 FW 1, ``Service-Administered Audits 
of Grantees,'' April 26, 2015.

Updates to the Regulations

    This final rule is not a full update to the regulations. As 
described in the preamble to the proposed rule, we worked with our 
State partners to develop a phased approach whereby we would address a 
limited number of updates over multiple rulemakings, allowing our 
partners and the public to better engage and respond to changes. This 
final rule was started as the initial phase of an expected four-phase 
process. We have since determined that we are not able to accommodate 
the required process and timing needed to make the phased approach 
work. We will work with our partners to develop a new approach for the 
remaining regulatory updates, to include engagement opportunities 
during the prerulemaking stage.
    The final rule is divided into subparts of related subject matter. 
This final rule only changes one full subpart, that on license 
certification. Other updates are at various locations within the rule.

Response to Public Comments

    We solicited public comments to the proposed rule published 
December 15, 2017, for 60 days, ending on February 13, 2018. State fish 
and wildlife agencies are the primary recipients of grants affected by 
this rule. We received 37 comments in response to the proposed rule 
from 15 States, several fish and wildlife-related organizations, and 
the public.
    In addition to proposed changes to the rule, in the preamble to the 
proposed rule we requested feedback on topics that we will consider for 
future rulemaking. This discussion starts at 82 FR 59566 in the 
proposed rule. We consider these topics to potentially elicit a variety 
of responses and offer this as an opportunity to start a national 
conversation. We will not respond to any comments received from the 
topics in the preamble, as they are not part of the rule. However, we 
appreciate all those who took the time to give thoughtful comments and 
will be using those comments when addressing these topics in the 
future. They help inform us of needs, opinions, perceptions, and 
priorities in these programs that are integral to nationwide fish and 
wildlife conservation and recreation activities.
    The following paragraphs discuss the substantive comments received 
and provide our responses to those comments. The comments are not 
presented verbatim and where several commenters responded with similar 
thoughts, we have summarized them as a single comment.
    We received 23 general comments from the public. Several commenters 
expressed support to the changes in general, even when they made 
suggestions to specific sections of the rule. Some we consider 
nonsubstantive. This does not mean that the comments provided are not 
important, but rather that they do not address what is proposed in this 
rulemaking. We do, however, address some comments that, although they 
do not relate directly to the content of this rulemaking, do relate to 
WSFR and State fish and wildlife agency work.

General

    Comment 1: One commenter cited information on the National Dam 
Safety Act and the importance of partnerships that ensure dam safety.
    Response 1: The National Dam Safety Program Act provides funding to 
States and other agencies with grants administered by the Federal 
Emergency Management Agency. Policies for administration of those 
programs are at https://damsafety.org/ManualsAndGuidelines. Dams are 
real property and, according to our regulations, are titled with the 
State fish and wildlife agency when purchased through the Wildlife 
Restoration

[[Page 44773]]

Program or Sport Fish Restoration Program. Therefore, compliance with 
State or any applicable Federal laws for dams acquired or built with 
these funds is the responsibility of the title-holding State agency.
    Comment 2: The Wildlife and Sport Fish Restoration Program still 
bears the name of those Congressmen who crafted the legislation all 
those years ago. Why is this? The implementing regulations belong to 
the taxpayer and should not serve as a monument to originating 
Congressmen.
    Response 2: It has been typical throughout Congressional history to 
name a piece of legislation after the sponsors who championed the 
action or someone else who inspired the purpose of the legislation. 
This unofficial naming process is usually done in relation to the 
specific purpose that the Act supports and is not associated with other 
aspects of the sponsor's life. Although the original Act does not cite 
it as the Pittman-Robertson Wildlife Restoration Act, a major piece of 
legislation since then, Public Law 106-408 Wildlife and Sport Fish 
Restoration Programs Improvement Act of 2000, does cite both Acts using 
the sponsors' names. We have no control over how Congress gives titles 
to Acts. However, we do appreciate and understand your concern.
    Comment 3: The public isn't sufficiently engaged in the work and 
decisions of the State fish and wildlife agency in the commenter's 
State.
    Response 3: We have no control over the State regulatory process 
nor do we control the administrative processes of the State fish and 
wildlife agency. We recommend contacting State officials, sharing your 
concerns, and seeking the various methods that your State offers for 
engaging in decisionmaking.
    Comment 4: Commenters expressed concerns with timber harvesting, 
the lumber industry, forestry management, and related economic, social 
issues, and property concerns and, similarly, concerns surrounding 
endangered species.
    Response 4: Although some State fish and wildlife agencies engage 
in forestry activities as part of wildlife management, neither this 
rule nor this agency addresses actions relevant to those concerns. The 
U.S. Forest Service (https://www.fs.fed.us/), under the Department of 
Agriculture, would be the best contact for information on national 
forest management. The Service does manage endangered species laws and 
grant funding, but this rule does not cover those activities directly. 
For more information on Federal financial assistance for endangered 
species, visit: https://www.fws.gov/endangered/grants/.
    Comment 5: The Service should use funds under the Wildlife 
Restoration Act for management of all species of wildlife. The Act was 
written for species that are imperiled and not just for those that are 
hunted.
    Response 5: The original Act authorized cooperation with State fish 
and wildlife agencies for ``wildlife restoration projects'' that were 
defined as ``the selection, restoration, rehabilitation, and 
improvement of areas of land or water adaptable as feeding, resting, or 
breeding places for wildlife, including acquisition by purchase, 
condemnation, lease, or gift of such areas or estates or interests 
therein as are suitable or capable of being made suitable therefor, and 
the construction thereon or therein of such works as may be necessary 
to make them available for such purposes and also including such 
research into problems of wildlife management as may be necessary to 
efficient administration affecting wildlife resources, and such 
preliminary or incidental costs and expenses as may be incurred in and 
about such projects.'' State fish and wildlife agencies may use their 
Wildlife Restoration funds for species under their control that meet 
the definition of ``wildlife'' at 50 CFR 80.2. This definition limits 
eligible species to birds and mammals. Some States have asked that we 
expand the definition to include species that are hunted in that State, 
but are not birds or mammals, as these species often need a management 
plan and those who purchase licenses to hunt those species contribute 
financially when they purchase a license. The topic of defining 
wildlife will continue to be considered, and we appreciate this public 
input.
    Comment 6: The regulations don't even really mention Comprehensive 
Management System grants, but they are a big part of the original 
legislation. This method seems much more efficient. Are there plans to 
revisit this issue in a future rulemaking?
    Response 6: The original Act (50 Stat. 917, Sept. 2, 1937) does not 
include Comprehensive Management Plans, but uses the word ``plans.'' We 
agree that the Comprehensive Management System for managing financial 
assistance is a method that more States could employ to administer 
these programs efficiently and would include periodically seeking 
public input. We intend to expand this information in a future 
rulemaking.
    Comment 7: The minimum dollar amount for certifying licenses is 
meaningless at $2. It doesn't reflect market reality. Aren't data 
available that would allow you to determine an appropriate annual price 
and standardize a market-based amount?
    Response 7: The rules that govern financial assistance (2 CFR part 
200) clarify that market value is determined on a very local level. 
Comparing the cost of similar licenses in different States shows that 
there is no national consistency, but rather each State sets prices 
based on the needs and desires of their State fish and wildlife agency 
and the public. The standard in this final rule was recommended not 
based on market value of a license, but rather the desire to cover 
administrative costs of issuing a license and having some license 
revenue left to the State agency. The intent is simplicity, clarity, 
and fairness. This standardized method accommodates all States, 
regardless of the State laws that govern license fees.
    Comment 8: A commenter questions the Service's compliance with the 
Regulatory Flexibility Act (RFA) and the Small Business Regulatory 
Enforcement Fairness Act (SBREFA).
    Response 8: We address both of these requirements in the ``Required 
Determinations'' section of the preamble at 82 FR 59568, Dec. 15, 2017. 
Under the RFA we are required to review and consider how this rule, 
which governs the administration of these financial assistance 
programs, economically affects small entities. Under the SBREFA we 
assess whether the rule will have a significant economic impact on a 
substantial number of small entities of $100 million or more; cause a 
major increase in costs or prices; or have significant adverse effects 
on competition, employment, investment, productivity, or innovation. As 
the WSFR programs and subprograms transfer money primarily to State 
fish and wildlife agencies, and the transfer of funds is a benefit to 
smaller entities that partner with the State agencies, there is no 
adverse effect to small entities under this rule. It is possible that 
some Federally funded projects, when complying with other Federal, 
State, or local laws, could affect small entities, but those instances 
are outside the purview of this rule.
    Comment 9: The Humane Society of the United States emphasizes the 
importance of engaging with nongovernmental organizations when 
developing regulations.
    Response 9: Executive Order (E.O.) 13563 (Jan. 18, 2011) directs 
Federal agencies to adopt regulations through a process that involves 
public participation, including, among other provisions, offering a 
comment period of at least 60 days.
    WSFR is fully compliant with E.O. 13563. Any entities wishing to 
engage in

[[Page 44774]]

future prerulemaking opportunities may do so by notifying us using 
information at FOR FURTHER INFORMATION CONTACT.
    Comment 10: This proposed rule contains unanticipated changes.
    Response 10: Following feedback from States that addressing the 
large amount of changes to 50 CFR part 80 in one rulemaking was too 
burdensome, in April 2016 Service staff approached the Federal/State 
Joint Task Force on Federal Assistance Policy (JTF) and the Federal Aid 
Coordinators Working Group (FACWG) with a concept to approach updates 
using a phased approach. This approach would allow fewer topics per 
rulemaking and the ability to manage the workload over 18-24 months. 
The process was agreed to, and the FACWG and Regions nominated members 
to a Federal/State team that developed a schedule to include timing and 
suggested topics for each phase. The schedule was shared in September 
2016 without objection, but was delayed by a few months as the topic of 
license certification, which was scheduled to be published as a 
separate rulemaking, was close to being ready to go into a proposed 
rule. We worked with the JTF and the Association of Fish & Wildlife 
Agencies (AFWA) to finalize the concepts of license certification 
changes and added the revised subpart to the proposed rule already 
developed as Phase 1. Unfortunately, the proposed rule was 
administratively delayed, and we were unable to maintain the 
recommended phased schedule for rulemaking. During the delay, much 
communication focused on license certification and did not reiterate 
all proposed changes. We will engage our partners more effectively in 
the future when preparing for further rulemaking.

Subpart A--General

Section 80.2 What terms do I need to know?
    (1) Asset--New definition.
    Comment 11: It is unnecessary to define ``Asset'' as it is already 
defined at 2 CFR 200.12.
    Response 11: The definition at 2 CFR 200.12 is for a ``capital 
asset,'' which is a subset of the term ``asset.'' However, we agree 
that we should reference back to 2 CFR part 200 and align for ease of 
grant administration. We added to this definition the reference for 
capital asset, as it defines criteria for a capital asset. We also 
added the reference for equipment at 2 CFR 200.33, as it defines 
criteria for equipment as an asset. We also clarify that real property 
of any value is an asset.
    Comment 12: This expansive definition could cause States 
considerable challenges related to control of assets. Section 80.90(f) 
requires States to maintain control of all assets acquired under the 
grant to ensure they serve the purpose for which acquired throughout 
their useful life. However, a useful life is only determined for those 
items meeting the threshold of equipment or capital improvement. This 
new definition opens the door for audit findings over very minor items. 
Another commenter is concerned this definition is overly broad and 
vague and asks if there is a threshold for monetary value.
    Response 12: Response 11 explains that some assets that are defined 
under 2 CFR part 200 have criteria that contain certain thresholds. We 
define the term ``asset'' to clarify that it can mean: (1) Either 
tangible (physical in nature) or intangible (not physical in nature, 
such as software, licenses to operate, copyrights, or usage rights), 
(2) Real or personal property, and (3) Must have a monetary value.
    This definition is applied in Sec.  80.90(f) where an agency is 
required to have ``Control of all assets acquired under the grant to 
ensure that they serve the purpose for which acquired throughout their 
useful life.'' In Sec.  80.2 we define useful life as ``the period 
during which a federally funded capital improvement is capable of 
fulfilling its intended purpose with adequate routine maintenance.'' We 
further define capital improvement as amended ``(i) A structure that 
costs at least $25,000 to build or install; or (ii) The alteration or 
repair of a structure, or the replacement of a structural component, if 
it increases the structure's useful life by at least 10 years or its 
market value by at least $25,000.'' So, when applying the term 
``asset'' under 50 CFR 80.90(f), it relates to capital improvements and 
not minor items.
    (2) Capital improvement--Updated definition. We received nine 
comments concerning the definition; four expressed support.
    Comment 13: A commenter recommends an even higher threshold of 
$50,000.
    Response 13: We have no basis to increase the threshold to $50,000. 
The $25,000 threshold is based on the limits on real property 
appraisals at 49 CFR 24.102(c) and other sources. We increased the 
threshold from $10,000 to $25,000 in the Boating Infrastructure Grant 
Program rule (80 FR 26150, May 6, 2015) and intend to apply the 
increased threshold to all WSFR-administered programs.
    Comment 14: The paragraph in the 2011 rule that allows States to 
set their own definition for capital improvement was removed in the 
proposed rule and should be included in the final rule.
    Response 14: We agree. This was an omission on our part, and we 
have added the paragraph back to the definition.
    (3) Geographic location--New definition.
    Comment 15: We received multiple comments on this proposed 
definition. Some suggest that it doesn't allow for ``Statewide,'' 
regional areas, or multiple counties to be chosen, hampering the scope 
of projects where it is applicable. Others suggest that limiting 
reference to U.S. Geological Survey quadrangles doesn't allow for other 
identifiers and possible new technology for identifying location. 
Others were concerned that the language used (Ex: parcel) implies this 
is only for real property work.
    Response 15: We agree with some of the suggestions and considered 
making changes in the final rule to reflect concerns. However, due to 
the wide variety of comments received and the connection to upcoming 
work for performance reporting, we decided to delay addressing this 
definition for future rulemaking consideration.
    (4) Match--Updated definition.
    Comment 16: Match is already defined in 2 CFR 200.29 and should be 
removed.
    Response 16: We disagree that the definition should be removed from 
this rule, but agree that it should better align with the 2 CFR part 
200 definition. We make changes based on this comment.
    Comment 17: All definitions for match are confusing and make it 
appear that match must be only in-kind.
    Response 17: To improve clarity, we make changes that clearly 
distinguish that cash and in-kind may both be used for match.
    Comment 18: Commenters had concerns with the definition including a 
threshold for useful life as well. How should we respond to an 
improvement on a structure that originally didn't meet the $25,000 
threshold, but has its useful life extended by at least 10 years? It 
does not seem logical that increasing its useful life by any number of 
years would make it become a capital improvement.
    Response 18: At 2 CFR 200.12, capital assets are defined as 
tangible or intangible assets used in operations having a useful life 
of more than 1 year which are capitalized in accordance with generally 
accepted accounting principles. Capital assets include land, buildings 
(facilities), equipment, and intellectual property as well as 
additions, improvements, modifications, replacements, rearrangements, 
reinstallations, renovations or

[[Page 44775]]

alterations to capital assets that materially increase their value or 
useful life. So, regardless of the cost, if it has a useful life of 
greater than 1 year and is capitalized as an asset, it is a capital 
asset. The regulations at 2 CFR 200.13 state that a capital expenditure 
for improvement to land and buildings includes both increase in 
material value and increase in useful life. The regulations at 2 CFR 
part 200 do not specify what those limits are, but we set reasonable 
thresholds in this rule--material value being $25,000 and increase in 
useful life being 10 years. So, yes, it is possible for an asset that 
did not originally cost $25,000 or more and was therefore not a capital 
improvement, to be improved to extend the useful life by 10 or more 
years and it would then be a capital improvement.
    Comment 19: A commenter suggested that ``or its market value by at 
least $25,000'' be removed from the proposed definition. Market value 
is not needed if capital improvement is largely dependent on 
expenditure threshold.
    Response 19: We disagree. As stated in Response 18, the regulations 
at 2 CFR part 200 are vague on thresholds, but we set thresholds in 
this rule. The regulations in 2 CFR part 200 call for both material 
value and useful life, so it is appropriate to include market value at 
the higher $25,000 threshold.
    (5) Obligation--New definition. One comment was received supporting 
this definition. We make no changes from the proposed rule.
    (6) Real property--Updated definition.
    Comment 20: Clarify the use of ``some'' in the sentence that 
states, ``Examples of real property include fee, and some leasehold 
interests, conservation easements, and mineral rights.''
    Response 20: We agree that a better explanation would be 
beneficial, and we replaced the second sentence with the following: 
``Examples of real property include fee, conservation easements, access 
easements, utility easements, and mineral rights. A leasehold interest 
is also real property except in those States where the State Attorney 
General provides an official opinion that determines a lease is 
personal property under State law.'' In order for lease to be 
considered personal property, the Solicitor's Office of the Department 
of the Interior must be able to concur with this opinion.
    Comment 21: A commenter objected to the change in language from 
``the air space above the parcel, the ground below it,'' to ``the space 
above and below it.''
    Response 21: The grammatical change clarifies the sentence and 
restates the definition to reflect the traditional legal real property 
definition. We make no change based on this comment.
    Comment 22: Define the terms lease, license, and permit to make the 
definition of ``real property'' more understandable.
    Response 22: The term ``lease'' is defined at Sec.  80.2 under the 
term ``Lease,'' the term ``license'' is defined at Sec.  80.2 under the 
term ``Personal Property'' in paragraph (2)(iii). The term ``permit'' 
is defined on the Service's website for permits that the Service issues 
and is explained as, ``Permits enable the public to engage in 
legitimate wildlife-related activities that would otherwise be 
prohibited by law. Service permit programs ensure that such activities 
are carried out in a manner that safeguards wildlife. Additionally, 
some permits promote conservation efforts by authorizing scientific 
research, generating data, or allowing wildlife management and 
rehabilitation activities to go forward.'' (https://www.fws.gov/permits/) We suggest a definition that is broader, as it 
would be applied by multiple non-Service entities: ``A permit is a 
written authorization that allows a specific person, agency, or other 
entity to do something that is not forbidden by law, but is not allowed 
without the permit. The purpose of permits is usually to help ensure 
that the permittee is aware of and complies with certain laws, 
regulations, and conditions. Other purposes may be to raise revenue or 
prevent overuse of an area or a resource. The term is most often 
applied to an authorization issued by a governmental entity.'' We will 
consider adding a definition in a future rulemaking.
    (7) Structure--New definition.
    Comment 23: Commenters found this definition either unnecessary or 
confusing.
    Response 23: Due to the negative comments received and no pressing 
need for this definition, we decided to delay addressing this 
definition for future rulemaking consideration.
    (8) Technical Assistance--New definition. Several commenters 
support this definition as being helpful in differentiating technical 
assistance from management assistance.
    Comment 24: Commenters recommend the term be ``technical guidance'' 
instead of ``technical assistance.'' Several commenters expressed 
concerns that the definition is limited by targeting technical 
assistance to members of the public and on private lands. These 
commenters indicate that the definition needs to be expanded.
    Response 24: A small team working on a policy topic developed this 
definition for technical assistance, but it is clear from comments 
received that we should review it with other partners before putting it 
in regulation. A larger review will ensure it meets the needs and 
expectations of grantees. We will delay including it in regulation for 
future rulemaking consideration, but will still include technical 
assistance as a new, eligible activity under 50 CFR 80.50 and 80.51. We 
believe that most grantees understand that technical assistance does 
not include actual on-the-ground management activities and will 
continue that approach.

Subpart D--License Holder Certification

    Comment 25: Commenters strongly supported this subpart. Several 
commenters stated that they believe the changes will clarify and 
simplify the process; that even if certain license types are limited 
short term, the benefits outweigh this over the long term; and that the 
new standards are reasonable and attainable.
    Response 25: We appreciate the support and the work done within a 
Federal/State partnership to achieve consensus on this change.
Section 80.30 Why must an agency certify the number of paid license 
holders?
    We made no proposed changes to this section and received no 
comments. No change.
Section 80.31 How does an agency certify the number of paid license 
holders?
    We made no proposed changes to this section and received no 
comments. No change.
Section 80.32 What is the certification period?
    We made no proposed changes to this section and received no 
comments. No change.
Section 80.33 How does an agency decide who to count as paid license 
holders in the annual certification?
    Comment 26: The language in this section was changed to say that a 
license holder is to be counted in the certification period in which 
the license is ``sold'' instead of when ``first valid.'' The ``sold'' 
language was problematic in the past and corrected in the 2011 
rulemaking. Changing back to the old language brings the problems back. 
It is possible for individuals to purchase one annual license during 
the certification period and the next license ahead of time, but also 
in the same certification

[[Page 44776]]

period. Therefore, it is imperative to use language that reflects the 
period for which the license is valid.
    Response 26: We agree and make the change.
    Comment 27: We accept the concept of license holders voluntarily 
purchasing a license, even if they do not participate in the activity. 
However, we do not agree with individuals being ``forced'' to purchase 
a license for an activity that they do not want, but that they must do 
in order to obtain the license that they want.
    Response 27: The commenter is referring to States that do not offer 
individual options for all license types and combine privileges under 
one license purchase, even if the license holder does not want and/or 
need the second privilege. We have no control over this process, as 
these are State decisions, and we will not restrict a State's ability 
to issue licenses that require a license that gives the license holder 
more than one privilege, even if the additional privilege is unwanted 
or unneeded. As long as the license holder meets the requirements of 
this rule, they may be certified in the license certification period 
for each valid privilege.
    Comment 28: We disagree with allowing States to sell only 
combination hunting and fishing licenses and not offer them 
individually. Is it the intent of the rule to allow this and to then 
allow those States to count each license sold as both a hunting license 
holder and a fishing license holder?
    Response 28: It is the intent of the rule to make it clear that a 
State may only count an individual once during a certification period 
as either a hunting license holder or a fishing license holder. For 
example, if a State sells an individual both a small game license and a 
big game license, they are only counted once. However, if a State sells 
a combination hunting and fishing license, they may count them once as 
a hunter and once as an angler. This is true whether the individual 
chooses to purchase a combination license, or whether it is the only 
option offered by the State. It is not the intent of the rule to tell 
States whether or not they can require a license holder to purchase a 
combination hunting and fishing license without an option to purchase 
each individually.
Section 80.34 Must a State fish and wildlife agency receive a minimum 
amount of revenue for each license holder certified?
    Comment 29: Commenters expressed support for the new standard, but 
some concerns over the date when the standard would be required.
    Response 29: We agree that the effective date needs to be changed 
and we did so. We make changes to encourage a State to adopt the new 
standard as soon as possible, but also to allow a State 2 years from 
the effective date of the rule to adopt the new standard. This will 
allow States that need to revise legal requirements, policies, or 
documents sufficient time to do so.
    Comment 30: Under the new standard our State would have more than 
375,000 license holders we would not be able to count, resulting in a 
loss of millions of dollars in apportionments.
    Response 30: After consulting with AFWA, an organization that 
represents all States and State Directors, they agree that giving 
States 2 years to make changes to bring licenses up to the minimum 
standard is fair and sufficient. The minimum standard of $2/year/
privilege or $4/year for combination licenses is very low and should be 
able to be attained by States in order to count most licenses. If a 
State chooses to offer free licenses to certain groups, that is the 
State's choice and they will do so knowing that these license holders 
cannot be counted. However, we wish to point out that, in 50 CFR 80.20, 
``What does revenue from hunting and fishing licenses include?'', 
hunting and fishing revenue includes not only licenses, but also State-
issued permits, stamps, and tags. So, if, for example, a State offers a 
free hunting license to veterans and that is all they have, they cannot 
be counted. However, if they were to purchase a permit, stamp, or tag 
for $2 or more, then they can be counted as they have met the minimum 
standard to be counted as a hunting license holder.
    Comment 31: Question about a license that sells for $2.90, but 
$1.00 of that goes to the issuing agent and is taken by the agent prior 
to depositing in the agency account: Would these licenses meet the 
standard?
    Response 31: Yes, they would meet the standard. The $2 amount for 
the standard is based on research a committee authorized by AFWA 
conducted on the average costs to issue a license and have some income 
received by the State fish and wildlife agency. This research was used 
as the basis for determining a fair and acceptable minimum amount. It 
is understood that the ratio of costs associated with issuing a license 
vs. the amount of license revenue received varies depending on license 
types and States. It is important to remember that we are no longer 
applying the term ``net revenue.'' In the scenario described in the 
comment, the State fish and wildlife agency receives $2.90 and has made 
arrangements to pay the issuing agent in the manner described. On the 
State's website, they list the price of the license as $2.90. How the 
State manages the accounting and payment for services to issue the 
license, whether they deposit to an agency account and pay the issuing 
agent, or have the agent take it off the top, is an accounting process/
preference and does not affect the gross amount of the license. 
Therefore, we consider that the State fish and wildlife agency under 
these circumstances has met the new standard.
Section 80.35 What additional requirements apply to certifying 
multiyear licenses?
    In addition to addressing comments from the public for this 
section, we further reviewed the section and change the final paragraph 
(Sec.  80.35(g) in the final rule) to delete the requirement for States 
to obtain the Director's approval of its proposed technique to decide 
how many multiyear license holders remain alive in the certification 
period. A State fish and wildlife agency must use and document a 
reasonable technique, but does not need Director's approval.
    We removed Sec.  80.35(b) as explained in Response 34. As a result, 
we redesignate paragraphs (c) through (i) as paragraphs (b) through 
(h). At the newly designated Sec.  80.35(b)(1) and (2), we inform 
States how to address converting multiyear licenses sold under the 
final rule that was effective August 31, 2011, to the new standard. At 
Sec.  80.35(b)(1), we address those States that have invested the 
revenue collected for the license and held the funds as principle in 
the investment, not spending any of the amount collected. In this 
scenario, they have met the prior net revenue requirement through 
dividends from the investment and not from the revenue collected. 
Therefore, they may apply the entire amount of the revenue collected 
using the new standard from the effective date of this final rule 
forward. At Sec.  80.35(b)(2), we address those States that have 
invested the revenue collected for the license and that revenue has 
been spent, in part or in full. In this scenario, they must use the 
formula described to deduct the amount that would have been accounted 
for under the new standard from the time the license was sold until the 
time the State adopts the new standard. This is primarily for multiyear 
licenses that were sold under the rule effective August 31, 2011, due 
to the additional qualifications for net revenue, but may be applied to 
any multiyear licenses sold under 50 CFR part 80 regulations

[[Page 44777]]

that required net revenue and that are managed under an investment 
strategy to meet those net revenue requirements.
    Comment 32: A commenter supports allowing 80 years as a default for 
determining life expectancy for multiyear licenses.
    Response 32: We hope that allowing this additional option will help 
some States to reduce burdens for tracking multiyear licenses.
    Comment 33: There is a math error in the example given.
    Response 33: We agree and correct the error.
    Comment 34: Adjust Sec.  80.35(b) to allow States to start counting 
a valid multiyear license that meets the new standard, even if it was 
not able to be counted in the annual license certification the year 
before this final rule is effective. This would be a reasonable and 
appropriate way to address the drastic inconsistency in the 2011 rule 
from the previous rule and the fairer, consistent standards now being 
presented.
    Response 34: We reviewed prior versions of 50 CFR part 80 regarding 
multiyear licenses and found the following information:
    In 1982: 50 CFR 80.10(c)(2) states, ``Licenses which do not return 
net revenue to the State shall not be included. To qualify as a paid 
license, the fee must produce revenue for the State. Net revenue is any 
amount returned to the State after deducting agent or sellers fees and 
the cost for printing, distribution, control or other costs directly 
associated with the issuance of each license. (3) Licenses valid for 
more than one year, either a specific or indeterminate number of years, 
may be counted in each of the years for which they are valid; provided 
that: (i) The net revenue from each license is commensurate with the 
period for which hunting or fishing privileges are granted.''
    In 2008: 50 CFR 80.10(b)(4) states, ``The State may count persons 
possessing a multiyear license (one that is legal for 2 years or more) 
in each State-specified license certification period in which the 
license is legal, whether it is legal for a specific or indeterminate 
number of years, only if: (i) The net revenue from the license is in 
close approximation with the number of years in which the license is 
legal.''
    In 2011: 50 CFR 80.35(b) states, ``The agency must receive net 
revenue from a multiyear license that is in close approximation to the 
net revenue received for a single-year license providing similar 
privileges.''
    This history shows the change in the 2011 version that expanded 
beyond value per year to comparing the annual revenue of a multiyear 
license with the cost of a comparable annual license. We agree that 
this shift added a layer of complexity that we are resolving in this 
rulemaking. We also understand that including the language in the 
proposed rule at Sec.  80.35(b) penalizes those multiyear licenses that 
were adversely affected by the 2011 change. In order to truly simplify 
license certification and allow for future consistency for all States' 
multiyear licenses, we agree with the commenter and remove this 
paragraph in the final rule.
    Comment 35: Some States may believe that under Sec.  80.35(b) they 
are required to continue to carry forward some of the burdensome 
requirements for multiyear licenses needed to comply with current or 
past versions of the regulations.
    Response 35: We agree that it should be clear that State fish and 
wildlife agencies may stop using past methods for accounting for 
multiyear licenses that may be burdensome and complicated. We allow at 
Sec.  80.35(a) that State agencies must begin following the new 
standard for multiyear licenses sold before and after the effective 
date of this final rule, and at Sec.  80.35(c) we describe how to 
assign value to multiyear licenses sold before adopting the new 
standard. The only exception would be if a State identifies financial 
or operational harm and follows the exception at Sec.  80.35(c). We 
agree that Sec.  80.35(b) led to confusion on this point and have 
removed it from the rule, redesignating the paragraphs accordingly.
    Comment 36: Has the Service considered whether, if a combination 
license does not meet the standard of $4 for a combination license, it 
may be counted at all? For instance, what if the cost of a combination 
license is $3?
    Response 36: Yes, the Service has considered this issue. As the 
privilege to hunt and the privilege to fish would both be included in 
the license, a State fish and wildlife agency that does not meet the 
minimum standard for a combination license may choose to certify those 
licenses as either hunting licenses only, fishing licenses only, or a 
combination of hunting only and fishing only as long as the numbers do 
not exceed total licenses sold and meet all other regulatory 
requirements. For example, if a State sold 1,000 combination licenses 
for $3 each, it could certify 1,000 as hunting licenses only; or it 
could certify 1,000 as fishing licenses only; or it could certify 500 
as hunting licenses only and 500 as fishing licenses only.
    Comment 37: Many States are using multiyear licenses as a tool in 
efforts to recruit, retain, and reactivate hunters and anglers. The 
language at Sec.  80.35(b) does not support these efforts, and 
sportsmen and sportswomen would be discouraged to discover that their 
State is unable to count them as valid license holders in annual 
certifications due to the restrictive nature of the rule issued in 
August 2011.
    Response 37: We agree and have removed this paragraph as described 
in Response 34.
Section 80.36 May an agency count license holders in the annual 
certification if the agency receives funds from the State or another 
entity to cover their license fees?
    We received no comments on this section of the proposed regulations 
and made no changes in the final rule.
Section 80.37 May the State fish and wildlife agency certify a license 
sold at a discount when combined with another license or privilege?
    Comment 38: We advocate that under these circumstances the State 
must show how much the purchaser is paying for each privilege. That 
way, it is clear that neither privilege is being offered ``free.'' Some 
States may force an additional privilege where the result is the 
ability to count an additional license holder for which it has not 
received additional funds. For instance, a big game license is offered 
for $100, and a big game/fishing license is also being offered for 
$100. We believe that the opportunity to purchase both licenses 
separately must exist at a higher price to show it is truly a discount.
    Response 38: See Response 28. How a State determines to sell their 
hunting and fishing licenses is a State decision. As long as they meet 
the standard at Sec.  80.34, they may count the licenses accordingly.
Section 80.38 May an entity other than the State fish and wildlife 
agency offer a discount on a license, or offer a free license, under 
any circumstances?
    We received no comments on this section of the proposed regulations 
and made no changes in the final rule.
Section 80.39 What must an agency do if it becomes aware of errors in 
its certified license data?
    We received no comments on this section of the proposed regulations 
and made no changes in the final rule.

[[Page 44778]]

Section 80.40 May the Service recalculate an apportionment if an agency 
submits revised data?
    We received no comments on this section of the proposed regulations 
and made no changes in the final rule.
Section 80.41 May the Director correct a Service error in apportioning 
funds?
    We received no comments on this section of the proposed regulations 
and made no changes in the final rule.
Section 80.50 What activities are eligible for funding under the 
Pittman-Robertson Wildlife Restoration Act?
    Comment 39: A commenter objected to adding ``acquire equipment'' as 
an additional activity and the associated requirements to consider 
lease vs. purchase. Section 80.50(a)(6) already allows acquiring 
equipment, so this provision seems redundant. Also, acquiring equipment 
is not an activity, but a tool to implement activities. Consider 2 CFR 
200.313, 200.439, and 200.318 and the correlation with the addition of 
lease vs. purchase consideration in the rule.
    Response 39: We agree that having equipment listed in two different 
paragraphs in this section is redundant and unclear. We therefore 
strike the addition of the proposed Sec.  80.50(a)(14) and add under 
Sec.  80.50(a)(6) a new paragraph (iii) that directs grantees to refer 
to 2 CFR part 200 when making decisions for equipment, goods, and 
services. The regulations at 2 CFR 200.313(a)(1) refer to conditions of 
title once equipment is acquired, but supports the need for equipment 
to serve an authorized purpose. Sections 200.313(a)(2) and 
200.439(b)(1) and (2) clarify that acquiring equipment requires prior 
written approval from the awarding agency. Section 200.318(d) clearly 
states for non-State entities, ``The non-Federal entity's procedures 
must avoid acquisition of unnecessary or duplicative items. 
Consideration should be given to consolidating or breaking out 
procurements to obtain a more economical purchase. Where appropriate, 
an analysis will be made of lease versus purchase alternatives, and any 
other appropriate analysis to determine the most economical approach.'' 
In addition, Sec.  200.301 requires that non-Federal entities must 
relate financial data to performance accomplishments of the Federal 
award and demonstrate cost-effective practices. Section 200.404 
discusses reasonable costs. It is expected that this requirement of the 
grant proposal would address lease vs. purchase, as well as other cost 
elements. Section 200.405 discusses allocable costs and how to manage 
acquired equipment and other costs if they would support multiple 
purposes.
    We would expect that a lease vs. purchase analysis would primarily 
be needed for short-term equipment needs. Specialty equipment, where 
lease is not an option, and equipment for long-term use may be 
justifiable. We believe most grantees already consider these and other 
options when acquiring equipment and include this as part of their 
standard procurement processes, so there will be very few adjustments 
needed. We therefore leave this specific direction out of the final 
rule and point to 2 CFR part 200 for guidance.
    Comment 40: Use the term ``Provide'' for technical assistance 
instead of ``Give.''
    Response 40: We did not use the term ``provide'' in the proposed 
rule as that term is considered bureaucratic and not plain language. 
However, because a few commenters recommended this change, we have done 
so in this final rule and will consider in a future rulemaking if 
another word might be substituted. We agree that the most important 
thing to consider is making rules clear and understandable.
    Comment 41: We received several comments supporting adding payments 
in lieu of taxes (PILT) as eligible, and others that question including 
it.
    Response 41: Before April 17, 2009, payments in lieu of taxes were 
considered allowable only in proportion to the amount contributed by a 
WSFR award to the total cost of acquisition. This policy was stated in 
Federal Aid Policy memorandum 84-3, dated Dec.12, 1983, which no longer 
has any official status as policy. The WSFR Policy Branch reinterpreted 
this issue on April 17, 2009, in response to a State's challenge of an 
audit finding that payments in lieu of taxes are unallowable if the 
lands in question had not been acquired under a Federal award. This 
reinterpretation is consistent with the revision of 50 CFR part 80 in 
August 2011 and the implementation of 2 CFR part 200 on Dec. 26, 2014, 
and also emphasizes that PILT is eligible only if the PILT requirements 
are applied uniformly across all State land management agencies, and 
only for that portion of PILT not paid by other sources of revenue. 
This approach protects State fish and wildlife agencies and WSFR 
funding from unfair costs. We can also reference Corrective Action Plan 
for the Inspector General's audit report 2003-36, E-0007 2001-2003 for 
the period July 99-Oct 01, and the white paper on PILT revised in April 
2015. In some States these payments are required by law, and this 
provision clarifies that these payments may be made using WSFR funds 
without conflict. States are not required to make payments in lieu of 
taxes when there is no legal obligation to do so. We are moving this 
policy that has been in effect for 9 years into regulation. Supporting 
information is posted on the FA Wiki at: https://fawiki.fws.gov/display/WSFR/Payment+in+Lieu+of+Taxes+%28PILT+or+PILOT%29+-+WSFR.
    Comment 42: Use the term ``acquire'' instead of ``buy'' when 
referring to equipment and real property.
    Response 42: We agree and make applicable changes in the final 
rule.
    Comment 43: Include ``acquire real property for firearm and archery 
ranges'' under both Basic Hunter Education and Enhanced Hunter 
Education programs.
    Response 43: We agree and make the change.
    Comment 44: Some of the items listed in this section are activities 
and others are items that support activities. Perhaps more thought can 
be given on how to present this information.
    Response 44: We appreciate this comment and will thoughtfully 
consider how we present this information as part of a future 
rulemaking.
Section 80.51 What activities are eligible for funding under the 
Dingell-Johnson Sport Fish Restoration Act?
    The additional eligible items we proposed at Sec.  80.51 that apply 
to the Sport Fish Restoration Program are the same additions as we 
proposed at Sec.  80.50 for the Wildlife Restoration Program, except 
for Hunter Education. No unique comments were received for this 
section. We received comments on the addition of equipment and the 
requirement to consider purchase vs. lease (see Comment and Response 
39), which we address similarly by removing proposed Sec.  80.51(a)(14) 
and adding paragraph (iii) to Sec.  80.51(a)(8). We received comments 
to change ``Give'' to ``Provide'' at Sec.  80.51(a)(12) (see Comment 
and Response 40), and we ensured that we use the term ``acquire'' 
instead of ``buy'' regarding equipment (see Comment and Response 42). 
We also received comments regarding payment in lieu of taxes (see 
Comment and Response 41).
Section 80.56 What does it mean for a project to be substantial in 
character and design?
    We discuss comments on the proposed revisions and provide responses 
below. The decisions we make in addressing these comments

[[Page 44779]]

collectively results in no changes from the current regulations.
    Comment 45: The sentence at Sec.  80.56(a), ``Projects may have 
very different components and still be substantial in character and 
design,'' appears to serve no purpose, or is at least unclear what the 
purpose is.
    Response 45: We have received information that indicates that 
States have been breaking projects apart and submitting separate grants 
for different components of a project because of the perception that a 
project that contained various components--for example, a land 
acquisition, construction, and operation and maintenance--would not be 
viewed together as substantial in character and design if all were 
included in one grant proposal. Adding this sentence was intended to 
clarify that these projects may be included in one grant proposal, if a 
State chooses to do so, and still meet the requirement for being 
substantial in character and design. As this is not a requirement and 
did not lend the expected clarity, we remove this sentence and will 
manage administratively. If States have questions they should contact 
their Regional WSFR Office.
    Comment 46: Remove the word ``measurable'' from Sec.  80.56(b)(2): 
``States a purpose and sets measurable objectives, both of which you 
base on the need.'' One commenter stated it is not needed because the 
word ``quantified'' is used at Sec.  80.82(b)(3) when defining 
objectives. One commenter questioned if this was intentional and, if 
so, how a research project would be measured. Other comments stated 
that not every grant objective can be defined in measurable terms and 
States should be given flexibility when determining objectives.
    Response 46: We disagree that the inclusion of the word 
``measurable'' doesn't add value and suggest that it supports the 
concept of substantial in character and design. This is also supported 
by the requirements at 2 CFR 200.301, ``Performance measurement,'' that 
state, ``The recipient's (grantees) performance should be measured in a 
way that will help the Federal awarding agency and other non-Federal 
entities to improve program outcomes, share lessons learned, and spread 
the adoption of promising practices.'' Tracking and Reporting Actions 
for the Conservation of Species (TRACS) is the tracking and reporting 
system for conservation and related actions funded by the WSFR Program. 
A Federal/State team called the TRACS Working Group was established in 
May 2014, in part to set national standards for what information States 
would enter into TRACS. One of the agreed standards is Specific, 
Measurable, Achievable, Relevant, and Time Bound (S.M.A.R.T.) 
objectives. However, we will remove the word ``measurable'' in this 
section and consider adding all S.M.A.R.T. objective components in a 
future rulemaking. We will also consider in a future rulemaking if 
changes should be made at Sec.  80.82(b)(3) or other sections of the 
rule to better align information and requirements.
    Regarding research projects, 2 CFR 200.76, ``Performance goal,'' 
gives some further guidance for this when stating, ``Performance goal 
means a target level of performance expressed as a tangible, measurable 
objective, against which actual achievement can be compared, including 
a goal expressed as a quantitative standard, value, or rate. In some 
instances (e.g., discretionary research awards), this may be limited to 
the requirement to submit technical performance reports (to be 
evaluated in accordance with agency policy).'' The regulations at 2 CFR 
200.87 define ``research'' as ``a systematic study directed toward 
fuller scientific knowledge or understanding of the subject studied.'' 
The regulations at 2 CFR 200.210(d) explain as Federal Award 
Performance Goals that ``The Federal awarding agency must include in 
the Federal award an indication of the timing and scope of expected 
performance by the non-Federal entity as related to the outcomes 
intended to be achieved by the program. In some instances (e.g., 
discretionary research awards), this may be limited to the requirement 
to submit technical performance reports (to be evaluated in accordance 
with Federal awarding agency policy). Where appropriate, the Federal 
award may include specific performance goals, indicators, milestones, 
or expected outcomes (such as outputs, or services performed or public 
impacts of any of these) with an expected timeline for accomplishment. 
Reporting requirements must be clearly articulated such that, where 
appropriate, performance during the execution of the Federal award has 
a standard against which non-Federal entity performance can be 
measured.'' Whatever the focus of the award, it is clear that there 
must be some measurable objective, but that depending on the project 
there is flexibility in what the measure might be.
    Comment 47: The evaluation of cost effectiveness is relative and 
requires consideration of many variables. This is likely to be 
arbitrary if determined by WSFR staff. True cost effectiveness should 
be evaluated by economists, which would be a burden. Moreover, many 
wildlife-related activities are valued in non-financial ways, making it 
even more difficult.
    Response 47: The requirements at 2 CFR 200.301 include, ``the 
Federal awarding agency must require the recipient [grantee] to relate 
financial data to performance accomplishments of the Federal award. 
Also, in accordance with above mentioned standard information 
collections, and when applicable, recipients must also provide cost 
information to demonstrate cost effective practices.'' We are not 
requiring that recipients engage economists to determine this measure, 
but that they consider and address as appropriate for the award. Cost-
effectiveness does not necessarily mean using the cheapest option, as 
the cheapest option might not be the best for a successful project. 
Cost-effectiveness may consider multiple benefits, including those that 
are values driven. Cost considerations may also determine that paying 
more for something because it will improve useful life, management, 
accessibility, etc., is a good investment. We considered alternative 
language to explain cost-effectiveness, but believe that States are 
already addressing this issue when showing costs are necessary and 
reasonable, which supports a project being substantial in character and 
design. No changes are made based on this comment.
Section 80.82 What must an agency submit when applying for a project-
by-project grant?
    Comment 48: We are uncertain as to whether at the proposed Sec.  
80.82(c)(10), ``Budget Narrative,'' the schedule of payments for 
projects that use funds from two or more annual apportionments is meant 
to apply to the acquisition of capital improvements and equipment, or 
if it is meant to apply to all projects. It is typical for our State to 
write 2-year grants for our projects with status of available fund 
conditions. The exact funding of these projects is never determined 
until the apportioned funds are available. This has been an efficient 
method of managing the apportionment, and we would not want to have to 
in advance determine apportionment allocation among other grants.
    Response 48: The content at Sec.  80.82(c)(10) was not changed from 
the current rule. Rather, this subparagraph was reformatted to pull out 
the three items under Budget Narrative as (i), (ii), and (iii), instead 
of a single sentence. We understand that a budget is an estimate and 
certain projections are made, and that available funds in a future 
grant period could alter a

[[Page 44780]]

multiyear budget. As this section is not changed, there is no 
requirement to make changes in current, approved procedures.
    Comment 49: Why do you propose separating ``Purpose'' and 
``Objective?'' If it is related to real property and the purpose for 
which land is acquired, we recommend addressing this in the real 
property chapters instead of the rule.
    Response 49: We separate purpose and objective to clarify that they 
are two discrete concepts that have often been addressed as a single 
concept. This clarifies what information each is intended to convey. 
The regulations at 2 CFR part 200 demonstrate a preference for using 
the term ``objective'' in relation to costs, and for using ``goal'' as 
we use the term ``objective''; however, ``objective'' is used at 
various locations when discussing project or program objectives. The 
regulations at Sec.  200.76 state, ``Performance goal means a target 
level of performance expressed as a tangible, measurable objective, 
against which actual achievement can be compared, including a goal 
expressed as a quantitative standard, value, or rate,'' aligning 
``goal'' to ``objective'' and not relating it to purpose. In several 
locations at 2 CFR part 200, performance is measured in relation to 
whether goals/objectives are achieved, so it is important to clearly 
define objectives.
    Comment 50: A commenter suggests editing Sec.  80.82(c)(9)(iv) to 
read as follows: ``Indicate whether the agency wants to treat program 
income that it earns after the grant period as either: (a) License 
revenue; or (b) additional funding for purposes consistent with the 
grant terms and conditions or program regulations'' (i.e., adding the 
phrase ``as either''). This would help eliminate confusion.
    Response 50: We agree this language should be clarified and make 
changes.
    Comment 51: At Sec.  80.82(b)(10)(ii), if the State agency's 
threshold for capital improvement is less than the amount defined at 
Sec.  80.2, is prior approval required?
    Response 51: No. If a capital improvement meets the State agency 
standard, but is lower than the standard in this rule, prior approval 
is not required.
Section 80.85 What requirements apply to match?
    Comment 52: Clarify the term ``in-kind,'' as it is not consistently 
understood and often misused.
    Response 52: Although we had proposed revisions to Sec.  80.85, we 
have decided not to change this section in this final rule. Instead, we 
adjust the definition of ``match'' at Sec.  80.2 to better align with 2 
CFR part 200 and to address this concern.
Section 80.97 How may a grantee charge equipment use costs to a WSFR-
funded project?
    Comment 53: We received several comments in regard to this section:
    (1) Clarify that this section refers to State fish and wildlife 
agency rates for equipment it owns.
    (2) Clarify at Sec.  80.97(b) in the second sentence that 
``agency'' refers to the State agency.
    (3) Using U.S. Army Corps of Engineers rates has proven to be 
problematic, and we suggest additional resources be devoted to 
identifying alternative, practical methods.
    (4) This section appears to be in conflict with 2 CFR part 200.
    (5) State fish and wildlife agencies work with multiple Federal 
agencies and having different rules for each agency is problematic.
    (6) This part of the rule is very restrictive to State fish and 
wildlife agencies.
    (7) Sometimes another State entity outside the fish and wildlife 
agency is involved in the process, which makes it complicated.
    (8) Requiring a State fish and wildlife agency to develop its own 
rates is an unfair burden.
    (9) We question the disparity between State fish and wildlife 
agencies and subgrantees.
    (10) This is the first official specification we have seen 
requiring a by-agency rate.
    (11) It is unclear how a State fish and wildlife agency cannot 
charge costs of equipment to another grant but can charge operating 
costs to a future grant.
    (12) We do not understand why another State agency cannot establish 
a rate that we can then use.
    (13) We recommend that the Federal agency develop rates for States 
to use.
    Response 53: WSFR first issued guidance on this topic on December 
23, 2014, to comply with the requirements at 2 CFR part 200 (see 
Comment 53, item 10). We received comments from States that indicated 
it was an extreme burden for subgrantees that are small entities to 
develop their own rates, so we updated the guidance on October 21, 
2016, to allow greater flexibility for subgrantees. The major 
difference for subgrantees is allowing them to use the State fish and 
wildlife agency rate, instead of having to determine their own rate. 
This still meets all the criteria under 2 CFR part 200 (see Comment 53, 
item 9). Once established, these equipment rates should be accepted by 
any other Federal programs in which a State fish and wildlife agency 
may participate, as if done properly they will fully comply with 2 CFR 
part 200 (see Comment 53, items 5 and 6). It is acceptable for a 
Statewide administrative agency to set rates, as long as when setting 
rates for the State fish and wildlife agency they only consider 
equipment types that are typical for use by the State fish and wildlife 
agency. A generic Statewide rate would include specialty equipment from 
other State agencies that could inappropriately proportion costs to the 
State fish and wildlife agency. In contrast, State fish and wildlife 
agencies also use specialty equipment that should be appropriately 
considered when determining rates, so that the agency receives 
sufficient credit for specialized equipment. A Statewide administrative 
entity should be fully equipped to perform this type of assessment (see 
Comment 53, items 7 and 12).
    Regarding burden, we clarify here that, once established, rates 
should be valid for several years and the base analysis would serve to 
make any future updates easier to accomplish (see Comment 53, item 8). 
Regarding other, alternate resources for determining rate schedules, 
according to 2 CFR part 200, rates must reflect local market rates and 
equipment that agencies use, so a strictly national rate would not 
comply with 2 CFR part 200. If a State were to identify a rate schedule 
developed by an organization or entity that it feels might comply with 
2 CFR part 200 and be used instead of their self-determined rates, WSFR 
Headquarters staff will, upon request, review to determine if it 
complies. However, WSFR does not have the resources to independently 
set forth on a project to set and update local rates for all States 
(see Comment 53, items 3 and 13). Comment 53, item 11, seeks clarity on 
process and comment 53, items 1 and 2, recommend edits. However, due to 
the apparent need for additional education and understanding on this 
topic, we have determined not to include these proposed changes in the 
final rule. We will continue to follow the current WSFR guidance and 2 
CFR part 200. We will evaluate the issue and associated needs and 
communicate with State fish and wildlife agencies for additional 
opportunities to better understand these requirements.

[[Page 44781]]

Section 80.98 May an agency barter goods or services to carry out a 
grant-funded project?
    We received no comments on this section of the proposed regulations 
and made no changes in the final rule.
Section 80.120 What is program income?
    We amend Sec.  80.120(c)(5) to align with 2 CFR 200.307(d).
    Comment 54: At Sec.  80.120(b)(5) hunter education course fees are 
listed as program income, but at Sec.  80.120(c)(3) cash received for 
incidental costs is not program income. These are not clearly 
distinguished and could cause confusion. One commenter thought we were 
removing Sec.  80.120(c)(3), which we are not.
    Response 54: We accept the comments requesting further clarity. We 
added a sentence to Sec.  80.120(a) after defining program income to 
include, ``Upon request from the State agency and approval of the 
Service, the option at 2 CFR 200.307(b) may be allowed.'' This option 
is: ``If authorized by Federal regulations or the Federal award, costs 
incidental to the generation of program income may be deducted from 
gross income to determine program income, provided these costs have not 
been charged to the Federal award.'' This provision clarifies that a 
State agency may choose to apply net program income instead of gross 
program income. We expanded Sec.  80.120(b)(5) to include fees 
collected by the agency for delivering or providing hunter education, 
aquatic education, or other courses. This change clarifies that if an 
agency partners or contracts with another entity and the partner or 
vendor collects fees that do not go to the State agency, it is not 
program income. It also clarifies that the courses may be more than 
just hunter education, but any courses a State may offer under these 
programs. We expanded Sec.  80.120(c)(3) not only to apply these 
incidental costs to all offered training, but also to explain that 
incidental costs are small amounts and typically not essential to 
training delivery. For example, if there is no fee for a course, but 
the agency sells each participant a workbook at cost for $5, that is 
incidental and not program income. If a class offers food and drink to 
attendees who are then asked to contribute to the cost, that is an 
incidental cost and not program income.
Section 80.123 How may an agency use program income?
    Comment 55: Clarify the change at Sec.  80.123 to say that program 
income must be spent within the grant period and program in which it is 
earned before requesting additional Federal funds for the activity for 
which the program income is earned. Otherwise, it could be 
misinterpreted to mean that an agency may not request any Federal 
funds, even if from another project or program, unless that program 
income is expended first.
    Response 55: We concur with this suggestion and make changes. We 
also make additional changes to this section to reflect some of the 
flexibility we announced earlier this year for increased use of the 
cost-sharing program income method. At Sec.  80.123(a) we change the 
word ``method'' to ``methods'' to indicate that a State agency may 
indicate its intention to use more than one method for program income. 
We add the next sentence that includes the clarification for when 
program income must be spent and designate as Sec.  80.123(b). We 
designate the table that describes the three methods for applying 
program income as Sec.  80.123(c) and make changes to align with 2 CFR 
part 200 and other sections of 50 CFR part 80. We remove the existing 
Sec.  80.123(c), which gives additional criteria for using the cost-
sharing method for program income, which we no longer require. These 
changes align to 2 CFR part 200 and give State agencies greater 
latitude in using program income.
Section 80.124 How may an agency use unexpended program income?
    We received no comments on this section of the proposed 
regulations. However, we have changed the language from the proposed 
rule for clarification. We moved the requirement in the last sentence 
to the beginning of the section and associated it with an award and not 
``activities.'' This revision clarifies that spending program income 
before requesting additional payments is specific to the award and not 
to ``activities,'' which could be confused to mean the same activities 
under other awards.
Section 80.134 Is a lease considered real property or personal 
property?
    Comment 56: We received comments that reflect three concerns: (1) 
This section seems to contradict 2 CFR 200.59 regarding intangible 
property; (2) it is unclear how this relates to land database 
requirements; and (3) this question and answer read more like a 
definition.
    Response 56: There are two separate concepts that are getting 
confused. The regulations at 2 CFR 200.59 state, ``Intangible property 
means property having no physical existence, such as trademarks, 
copyrights, patents and patent applications and property, such as 
loans, notes and other debt instruments, lease agreements, stock and 
other instruments of property ownership (whether the property is 
tangible or intangible).'' There is a difference between a lease 
agreement and the land associated with a lease. The lease agreement is 
intangible, but the land associated with the lease agreement is 
tangible. However, that is not the question here. The question here is 
whether a lease is real or personal property. The intangible lease 
agreement, along with the tangible property it relates to, are together 
treated as real property. This is supported by WSFR's Solicitor who 
wrote in an opinion that true leases are considered real property, 
unless a State Attorney General provides an official written decision 
indicating otherwise.
    The second comment regarding the land database requirements is not 
a topic we intend to address in rulemaking. The commenter should 
discuss this issue with Regional WSFR staff. In regard to the comment 
that this question and answer reads more like a definition, Federal 
regulatory agencies should not include substantive regulatory 
provisions in a definition, but definitions may be included within the 
body of the rule, especially if they add clarity or are not used in 
more than one section of the rule. No comments objected to the answer 
to the question, but due to the confusion surrounding tangible vs. 
intangible property and real vs. personal property, we will not include 
this issue in the final rule and will address in future policy work, 
while concentrating on clarifying all aspects of the topic.
Section 80.136 What standards must an agency follow when conducting 
prescribed fire on land acquired with financial assistance under the 
Acts?
    Comment 57: Why is the Service proposing a new section that 
instructs States what not to do, and why is it in the real property 
section? Also, please explain ``substantial involvement.''
    Response 57: The Service's Branch of Fire Management is responsible 
for developing and maintaining the policy that includes controlled 
burns. In September 2005 the Joint Federal/State Task Force on Federal 
Assistance Policy (JTF) discussed the topic of controlled burns 
conducted by States using WSFR funds and a proposed update to the 
policy. The Service's Solicitor's Office and WSFR Policy staff worked 
with the Branch of Fire Management on this topic. The States wanted 
clarity, as often acceptance of Federal funds means

[[Page 44782]]

compliance with Federal requirements. The determination was that a 
State conducting such actions on non-Federal land without substantial 
involvement from a Federal entity does not have to follow the Service 
policy on controlled burns. This determination was documented in a 
Director's Memo, ``Prescribed Burning Off-Service Lands: Clarification 
of the Sept. 16, 2005, Addendum to the Fish and Wildlife Service Fire 
Management Handbook'' issued on March 29, 2007. The addendum states: 
``When conducting prescribed burning off Service lands under a Service-
administered grant agreement, State fish and wildlife agencies: (a) 
Must comply with existing State protocols that include compliance with 
pertinent Federal, State, and local laws; and (b) do not have to comply 
with any requirements of the Fish and Wildlife Service Fire Management 
Handbook provided that the Service does not have ``substantial 
involvement'' in the project, as provided in 31 U.S.C. 6301-6308. 
Therefore, if these requirements are met, State grantees under a 
Service-administered grant agreement do not have to submit 
documentation under the grant agreement to reflect compliance with 
requirements of the Fish and Wildlife Service Fire Management 
Handbook.'' The purpose of adding this section to the rule is to 
institutionalize this information in program regulations, a location 
directly applicable to these programs, as it would not be typical for 
grantees to refer to Service Manual chapters outside of WSFR.
    Substantial involvement is what distinguishes a grant from a 
cooperative agreement per the Federal Grant and Cooperative Agreement 
Act of 1977 (Pub. L. 95-224, Feb. 3, 1978). Per OMB guidance (43 FR 
36860, August 18, 1978), the basic statutory criterion for 
distinguishing between grants and cooperative agreements is that for 
the latter, substantial involvement is anticipated between the 
executive agency and the grantee during performance of the contemplated 
activity. The Code of Federal Regulations (CFR) further describes 
``substantial involvement'' is a relative, rather than an absolute, 
concept, and that it is primarily based on programmatic factors, rather 
than requirements for grant or cooperative agreement award or 
administration. For example, substantial involvement may include 
collaboration, participation, or intervention in the program or 
activity to be performed under the award (32 CFR 22.215(b)). Grants.gov 
also addresses that, in general terms, ``substantial involvement'' 
refers to the degree to which Federal employees are directly performing 
or implementing parts of the award program. In a grant, the Federal 
Government more strictly maintains an oversight and monitoring role. In 
a cooperative agreement, Federal employees participate more closely in 
performing the program. When you read ``cooperative,'' think working 
``side-by-side.'' (https://blog.grants.gov/2016/07/19/what-is-a-cooperative-agreement/) This concept has been around for decades, and 
Federal grant managers are trained to make these decisions. 
Traditionally, most awards under this rule are made using the 
instrument of a grant, and not a cooperative agreement. Cooperative 
agreements are allowed, but rarely done, as the majority of projects 
are conducted under the control of the State fish and wildlife agency 
without Federal staff having an active role. This proposed new section 
was located in the real property section because it involves land 
activities.
    However, due to the concerns raised by comments to this section, we 
will not include this new section in the final rule and will consider 
for future rulemaking.
Section 80.139 What if real property is no longer useful or needed for 
its original purpose?
    Comment 58: Recommend changing the term ``grant-funded'' to 
``grant-acquired.''
    Response 58: We agree and make the change.
    Comment 59: Recommend removing any reference to personal property 
as it is confusing in a section focused on real property.
    Response 59: We agree and make the change.
Section 80.140 When the Service approves the disposition of real 
property, equipment, intangible property, and excess supplies, what 
must happen to the proceeds of the disposition?
    Comment 60: We received several comments on this section that 
address Sec.  80.140(c) and clarifying any relationship between 
disposition and program income, confusion because real and personal 
property are addressed together in this section, questions on WSFR-
funded vs. license revenue-funded assets, how this section relates to 2 
CFR part 200 and State assent legislation, and specific questions 
related to various scenarios.
    Response 60: We concur that disposition is a complicated topic and 
understand combining real and personal property, and all of the nuances 
of both the program and 2 CFR part 200, can lead to confusion as 
written. We will not make any changes to the final rule based on these 
proposed changes and will pursue this issue in future policy work.
Section 80.160 What are the information collection requirements of this 
part?
    We received no comments on this section; however, since the 
proposed rule was published, WSFR has a new OMB Control Number for 
information collections. We updated the final rule to reflect this 
change.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and
    Regulatory Affairs (OIRA) will review all significant rules. OIRA 
has determined that this rule is not significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this final rule in a manner 
consistent with these requirements.

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

    The Regulatory Flexibility Act requires an agency to consider the 
impact of rules on small entities, i.e., small businesses, small 
organizations, and small government jurisdictions. If there is a 
significant economic impact on a substantial number of small entities, 
the agency must perform a regulatory flexibility analysis. This 
analysis is not required if the head of an agency certifies the rule 
will not have a significant economic impact on a substantial number of 
small entities. The Small Business Regulatory Enforcement Fairness Act 
(SBREFA) amended the Regulatory Flexibility Act to require Federal 
agencies to state the

[[Page 44783]]

factual basis for certifying that a rule will not have a significant 
economic impact on a substantial number of small entities. We have 
examined this final rule's potential effects on small entities as 
required by the Regulatory Flexibility Act. We have determined that 
this final rule does not have a significant impact and does not require 
a regulatory flexibility analysis because it:
    a. Gives information to State fish and wildlife agencies that 
allows them to apply for and administer financial assistance more 
easily, more efficiently, and with greater flexibility. Only State fish 
and wildlife agencies may receive Wildlife Restoration, Sport Fish 
Restoration, and Hunter Education program and subprogram grants.
    b. Addresses changes in law and regulation. This rule helps 
applicants and grantees by making the regulations consistent with 
current authorities and standards.
    c. Rewords and reorganizes the regulations to make them easier to 
understand.
    d. Allows small entities to voluntarily become subgrantees of 
agencies, and any impact on these subgrantees would be beneficial.
    The Service has determined that the changes primarily affect State 
governments and any small entities affected by the changes voluntarily 
enter into mutually beneficial relationships with a State agency. They 
are primarily concessioners and subgrantees, and the impact on these 
small entities will be very limited and beneficial in all cases.
    Consequently, we certify that because this final rule will not have 
a significant economic effect on a substantial number of small 
entities, a regulatory flexibility analysis is not required.
    In addition, this final rule is not a major rule under SBREFA (5 
U.S.C. 804(2)) and will not have a significant impact on a substantial 
number of small entities because it will not:
    a. Have an annual effect on the economy of $100 million or more;
    b. Cause a major increase in costs or prices for consumers, 
individual industries, Federal, State, or local government agencies, or 
geographic regions; or
    c. Have significant adverse effects on competition, employment, 
investment, productivity, innovation, or the ability of U.S.-based 
enterprises to compete with foreign-based enterprises.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 et seq.) 
establishes requirements for Federal agencies to assess the effects of 
their regulatory actions on State, local, and tribal governments and 
the private sector. The Act requires each Federal agency, to the extent 
permitted by law, to prepare a written assessment of the effects of 
regulations with Federal mandates that may result in the expenditure by 
State, local, and tribal governments, in aggregate, or by the private 
sector, of $100 million or more (adjusted annually for inflation) in 
any 1 year. We have determined the following under the Unfunded 
Mandates Reform Act:
    a. As discussed in the determination for the Regulatory Flexibility 
Act, this final rule will not have a significant economic effect on a 
substantial number of small entities.
    b. The regulation does not require a small government agency plan 
or impose any other requirement for expending local funds.
    c. The programs governed by the final rule potentially assist small 
governments financially when they occasionally and voluntarily 
participate as subgrantees of an eligible agency.
    d. The final rule clarifies and improves upon the current 
regulations allowing State, local, and tribal governments and the 
private sector to receive the benefits of financial assistance funding 
in a more flexible, efficient, and effective manner.
    e. Any costs incurred by a State, local, or tribal government or 
the private sector are voluntary. There are no mandated costs 
associated with the final rule.
    f. The benefits of grant funding outweigh the costs. The Federal 
Government may legally provide up to 100 percent funding for grants to 
Puerto Rico and the District of Columbia. The Federal Government will 
also waive the first $200,000 of match for each grant to the 
Commonwealth of the Northern Mariana Islands and the territories of 
Guam, the U.S. Virgin Islands, and American Samoa. Of the 50 States and 
6 other jurisdictions that voluntarily are eligible to apply for grants 
in these programs each year, all participate. This is clear evidence 
that the benefits of this grant funding outweigh the costs.
    g. This final rule will not produce a Federal mandate of $100 
million or greater in any year, i.e., it is not a ``significant 
regulatory action'' under the Unfunded Mandates Reform Act.

Takings

    This final rule will not have significant takings implications 
under E.O. 12630 because it will not have a provision for taking 
private property. Real property acquisitions under these programs is 
done with willing sellers only. Therefore, a takings implication 
assessment is not required.

Federalism

    This final rule will not have sufficient Federalism effects to 
warrant preparing a federalism summary impact statement under E.O. 
13132. It would not interfere with the States' ability to manage 
themselves or their funds. We work closely with the States 
administering these programs. They helped us identify those sections of 
the current regulations needing further consideration and new issues 
that prompted us to develop a regulatory response.

Civil Justice Reform

    The Office of the Solicitor has determined under E.O. 12988 that 
the rule will not unduly burden the judicial system and meets the 
requirements of sections 3(a) and 3(b)(2) of the Order. The final rule 
will help grantees because it:
    a. Updates the regulations to reflect changes in policy and 
practice and recommendations received during the past 7 years;
    b. Makes the regulations easier to use and understand by improving 
the organization and using plain language;
    c. Modifies the final rule to amend 50 CFR part 80 published in the 
Federal Register at 76 FR 46150 on August 1, 2011, based on subsequent 
experience; and
    d. Adopts recommendations on new issues received from State fish 
and wildlife agencies. We reviewed all comments on the proposed rule 
and considered all suggestions when preparing the final rule for 
publication.

Paperwork Reduction Act (PRA)

    This final rule does not contain new information collection 
requirements that require approval under the PRA (44 U.S.C. 3501 et 
seq.). OMB reviewed and approved the U.S. Fish and Wildlife Service 
application and reporting requirements associated with the Wildlife 
Restoration, Sport Fish Restoration, and Hunter Education & Safety 
financial assistance programs and assigned OMB Control Number 1018-
0100, which expires July 31, 2021. An agency may not conduct or sponsor 
and you are not required to respond to a collection of information 
unless it displays a currently valid OMB Control Number.

National Environmental Policy Act

    We have analyzed this final rule under the National Environmental 
Policy Act (42 U.S.C. 4321 et seq.), 43 CFR part 46, and part 516 of 
the Departmental Manual. This rule is not a

[[Page 44784]]

major Federal action significantly affecting the quality of the human 
environment. An environmental impact statement/assessment is not 
required due to the categorical exclusion for administrative changes 
given at 43 CFR 46.210(i).

Government-to-Government Relationship With Tribes

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

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

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

List of Subjects in 50 CFR Part 80

    Fish, Grant programs, Natural resources, Reporting and 
recordkeeping requirements, Signs and symbols, Wildlife.

Final Regulation Promulgation

    For the reasons discussed in the preamble, we amend title 50 of the 
Code of Federal Regulations, chapter I, subchapter F, part 80, as 
follows:

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

0
1. The authority citation for part 80 is revised to read as follows:

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

Subpart A--General

0
2. Amend Sec.  80.2 by:
0
a. Adding in alphabetical order a definition for ``Asset'';
0
b. Revising the definition of ``Capital improvement'';
0
c. Removing the definition of ``Match'';
0
d. Adding in alphabetical order definitions for ``Match or cost share'' 
and ``Obligation''; and
0
e. Revising the definition of ``Real property''.
    The additions and revisions read as follows:


Sec.  80.2   What terms do I need to know?

* * * * *
    Asset means all tangible and intangible real and personal property 
of monetary value. This includes Capital assets as defined at 2 CFR 
200.12, Equipment as defined at 2 CFR 200.33, and real property of any 
value.
    Capital improvement or capital expenditure for improvement means:
    (1) A structure that costs at least $25,000 to build, acquire, or 
install; or the alteration or repair of a structure or the replacement 
of a structural component, if it increases the structure's useful life 
by at least 10 years or its market value by at least $25,000.
    (2) An agency may use its own definition of capital improvement if 
its definition includes all capital improvements as defined here.
* * * * *
    Match or cost share means the non-Federal portion of project costs 
or value of any non-Federal in-kind contributions of a grant-funded 
project, unless a Federal statute authorizes match using Federal funds. 
Match must meet the requirements at 2 CFR 200.306(b)(1)-(7).
    Obligation has two meanings depending on the context:
    (1) When a grantee of Federal financial assistance commits funds by 
incurring costs for purposes of the grant, the definition at 2 CFR 
200.71 applies.
    (2) When the Service sets aside funds for disbursement immediately 
or at a later date in the formula-based programs under the Acts, the 
definition at 50 CFR 80.91 applies.
* * * * *
    Real property means one, several, or all interests, benefits, and 
rights inherent in the ownership of a parcel of land or water. Examples 
of real property include fee, conservation easements, access easements, 
utility easements, and mineral rights. A leasehold interest is also 
real property except in those States where the State Attorney General 
provides an official opinion that determines a lease is personal 
property under State law.
    (1) A parcel includes (unless limited by its legal description) the 
space above and below it and anything physically affixed to it by a 
natural process or human action. Examples include standing timber, 
other vegetation (except annual crops), buildings, roads, fences, and 
other structures.
    (2) A parcel may also have rights attached to it by a legally 
prescribed procedure. Examples include water rights or an access 
easement that allows the parcel's owner to travel across an adjacent 
parcel.
    (3) The legal classification of an interest, benefit, or right 
depends on its attributes rather than the name assigned to it. For 
example, a grazing permit is often incorrectly labeled a lease, which 
can be real property, but most grazing permits are actually licenses, 
which are not real property.
* * * * *

0
3. Revise subpart D to read as follows:
Subpart D--License Holder Certification
Sec.
80.30 Why must an agency certify the number of paid license holders?
80.31 How does an agency certify the number of paid license holders?
80.32 What is the certification period?
80.33 How does an agency decide who to count as paid license holders 
in the annual certification?
80.34 Must a State fish and wildlife agency receive a minimum amount 
of revenue for each license holder certified?
80.35 What additional requirements apply to certifying multiyear 
licenses?
80.36 May an agency count license holders in the annual 
certification if the agency receives funds from the State or another 
entity to cover their license fees?
80.37 May the State fish and wildlife agency certify a license sold 
at a discount when combined with another license or privilege?
80.38 May an entity other than the State fish and wildlife agency 
offer a discount on a license, or offer a free license, under any 
circumstances?
80.39 What must an agency do if it becomes aware of errors in its 
certified license data?
80.40 May the Service recalculate an apportionment if an agency 
submits revised data?
80.41 May the Director correct a Service error in apportioning 
funds?

Subpart D--License Holder Certification


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

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


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

    (a) A State fish and wildlife agency certifies the number of paid 
license

[[Page 44785]]

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


Sec.  80.32  What is the certification period?

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


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

    (a) A State fish and wildlife agency must count only those people 
who have a license issued:
    (1) In the license holder's name; or
    (2) With a unique identifier that is traceable to the license 
holder, who must be verifiable in State records.
    (b) A State fish and wildlife agency must count a person holding a 
single-year license only once in the certification period in which the 
license first becomes valid. (Single-year licenses are valid for any 
length of time less than 2 years.)
    (c) A person is counted as a valid license holder even if the 
person is not required to have a paid license or is unable to hunt or 
fish.
    (d) A person having more than one valid hunting license is counted 
only once each certification period as a hunter. A person having more 
than one valid fishing license is counted only once each certification 
period as an angler. A person having both a valid hunting license and a 
valid fishing license, or a valid combination hunting/fishing license, 
may be counted once each certification period as a hunter and once each 
certification period as an angler. The license holder may have 
voluntarily obtained them or was required to have them in order to 
obtain a different privilege.
    (e) A person who has a license that allows the license holder only 
to trap animals or only to engage in commercial fishing or other 
commercial activities must not be counted.


Sec.  80.34  Must a State fish and wildlife agency receive a minimum 
amount of revenue for each license holder certified?

    (a) For the State fish and wildlife agency to certify a license 
holder, the agency must establish that it receives the following 
minimum gross revenue:
    (1) $2 for each year the license is valid, for either the privilege 
to hunt or the privilege to fish; and
    (2) $4 for each year the license is valid for a combination license 
that gives privileges to both hunt and fish.
    (b) A State fish and wildlife agency must follow the requirement in 
paragraph (a) of this section for all licenses sold as soon as 
practical, but no later than September 27, 2021.
    (c) A State may apply these standards to all licenses certified in 
the license certification period that this rule becomes effective.


Sec.  80.35  What additional requirements apply to certifying multiyear 
licenses?

    The following additional requirements apply to certifying multiyear 
licenses:
    (a) A State fish and wildlife agency must follow the requirement at 
Sec.  80.34(a) for all multiyear licenses sold before and after the 
date that the agency adopts the new standard, unless following the 
exception at paragraph (c) of this section.
    (b) If an agency is using an investment, annuity, or similar method 
to fulfill the net-revenue requirements of the version of Sec.  80.33 
that was effective from August 31, 2011, or any prior rule that 
required net revenue, until September 26, 2019, the agency must 
discontinue that method and convert to the new standard, unless 
following the exception at paragraph (c) of this section.
    (1) If the revenue collected at the time of sale has not been 
spent, the agency must begin to use the new standard by applying the 
total amount the agency received at the time of sale.
    (2) If the revenue collected at the time of sale has been spent, 
the agency must apply the new standard as if it were applicable at the 
time of sale. For example, if a single-privilege, multiyear license 
sold for $100 in 2014, and the agency adopts the new standard in 2018, 
then 4 years have been used toward the amount received by the agency (4 
years x $2 = $8) and the license holder may be counted for up to 46 
more years ($100 - $8 = $92/$2 = 46).
    (c) An agency may continue to follow the requirements of the 
version of Sec.  80.33 that was effective from August 31, 2011, or any 
prior rule that required net revenue, until September 26, 2019, for 
those multiyear licenses that were sold before the date specified at 
Sec.  80.34(b) if the agency:
    (1) Notifies the Director of the agency's intention to do so;
    (2) Describes how the new requirement will cause financial or 
operational harm to the agency when applied to licenses sold before the 
effective date of these regulations; and
    (3) Commits to follow the current standard for those multiyear 
licenses sold after the date specified at Sec.  80.34(b).
    (d) A multiyear license may be valid for either a specific or 
indeterminate number of years, but it must be valid for at least 2 
years.
    (e) The agency may count the license for all certification periods 
for which it received the minimum required revenue, as long as the 
license holder meets all other requirements of this subpart. For 
example, an agency may count a single-privilege, multiyear license that 
sells for $25 for 12 certification periods. However, if the license 
exceeds the life expectancy or the license is valid for only 5 years, 
it may be counted only for the number of years it is valid.
    (f) An agency may spend a multiyear license fee as soon as the 
agency receives it.
    (g) The agency must count only the licenses that meet the minimum 
required revenue for the license period based on:
    (1) The duration of the license in the case of a multiyear license 
with a specified ending date; or
    (2) Whether the license holder remains alive.

[[Page 44786]]

    (h) The agency must use and document a reasonable technique for 
deciding how many multiyear-license holders remain alive in the 
certification period. Some examples of reasonable techniques are 
specific identification of license holders, statistical sampling, life-
expectancy tables, and mortality tables. The agency may instead use 80 
years of age as a default for life expectancy.


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

    If a State fish and wildlife agency receives funds from the State 
or other entity to cover fees for some license holders, the agency may 
count those license holders in the annual certification only under the 
following conditions:
    (a) The State funds to cover license fees must come from a source 
other than hunting- and fishing-license revenue.
    (b) The State must identify funds to cover license fees separately 
from other funds provided to the agency.
    (c) The agency must receive at least the average amount of State-
provided discretionary funds that it received for the administration of 
the State's fish and wildlife agency during the State's 5 previous 
fiscal years.
    (1) State-provided discretionary funds are those from the State's 
general fund that the State may increase or decrease if it chooses to 
do so.
    (2) Some State-provided funds are from special taxes, trust funds, 
gifts, bequests, or other sources specifically dedicated to the support 
of the State fish and wildlife agency. These funds typically fluctuate 
annually due to interest rates, sales, or other factors. They are not 
discretionary funds for purposes of this part as long as the State does 
not take any action to reduce the amount available to its fish and 
wildlife agency.
    (d) The agency must receive and account for the State or other 
entity funds as license revenue.
    (e) The agency must issue licenses in the license holder's name or 
by using a unique identifier that is traceable to the license holder, 
who is verifiable in State records.
    (f) The license fees must meet all other requirements in this part.


Sec.  80.37  May the State fish and wildlife agency certify a license 
sold at a discount when combined with another license or privilege?

    Yes. A State fish and wildlife agency may certify a license that is 
sold at a discount when combined with another license or privilege as 
long as the agency meets the rules for minimum revenue at Sec.  80.34 
for each privilege.


Sec.  80.38  May an entity other than the State fish and wildlife 
agency offer a discount on a license, or offer a free license, under 
any circumstances?

    (a) An entity other than the agency may offer the public a license 
that costs less than the regulated price and a State fish and wildlife 
agency may certify the license holder only if:
    (1) The license is issued to the individual according to the 
requirements at Sec.  80.33;
    (2) The amount received by the agency meets all other requirements 
in this subpart; and
    (3) The agency agrees to the amount of revenue it will receive.
    (b) An entity other than the agency may offer the public a license 
that costs less than the regulated price without the agency agreeing, 
but must pay the agency the full cost of the license.


Sec.  80.39  What must an agency do if it becomes aware of errors in 
its certified license data?

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


Sec.  80.40  May the Service recalculate an apportionment if an agency 
submits revised data?

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


Sec.  80.41  May the Director correct a Service error in apportioning 
funds?

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

Subpart E--Eligible Activities

0
4. Amend Sec.  80.50 by:
0
a. Revising paragraph (a)(6);
0
b. Adding paragraphs (a)(9) and (10);
0
c. Redesignating paragraph (b)(2) as paragraph (b)(3); and
0
d. Adding new paragraph (b)(2) and paragraph (c)(6).
    The revisions and additions read as follows:


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

* * * * *
    (a) * * *
    (6) Build structures or acquire equipment, goods, and services to:
    (i) Restore, rehabilitate, or improve lands and waters as wildlife 
habitat; or
    (ii) Provide public access for hunting or other wildlife-oriented 
recreation.
    (iii) Grantees and subgrantees must follow the requirements at 2 
CFR part 200 when acquiring equipment, goods, and services under an 
award, with emphasis on Sec. Sec.  200.313, 200.317 through 200.326, 
and 200.439.
* * * * *
    (9) Provide technical assistance.
    (10) Make payments in lieu of taxes on real property under the 
control of the State fish and wildlife agency when the payment is:
    (i) Required by State or local law; and
    (ii) Required for all State lands including those acquired with 
Federal funds and those acquired with non-Federal funds.
    (b) * * *
    (2) Acquire real property suitable or capable of being made 
suitable for firearm and archery ranges for public use.
* * * * *
    (c) * * *
    (6) Acquire real property suitable or capable of being made 
suitable for firearm and archery ranges for public use.

0
5. Amend Sec.  80.51 by revising paragraph (a)(8) and adding paragraphs 
(a)(12) and (13) to read as follows:


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

* * * * *
    (a) * * *
    (8) Build structures or acquire equipment, goods, and services to:
    (i) Restore, rehabilitate, or improve aquatic habitat for sport 
fish, or land as a buffer to protect aquatic habitat for sport fish; or
    (ii) Provide public access for sport fishing.
    (iii) Grantees and subgrantees must follow the requirements at 2 
CFR part 200 when acquiring equipment, goods, and services under an 
award, with

[[Page 44787]]

emphasis on Sec. Sec.  200.313, 200.317 through 200.326, and 200.439.
* * * * *
    (12) Provide technical assistance.
    (13) Make payments in lieu of taxes on real property under the 
control of the State fish and wildlife agency when the payment is:
    (i) Required by State or local law; and
    (ii) Required for all State lands including those acquired with 
Federal funds and those acquired with non-Federal funds.
* * * * *

Subpart F--Allocation of Funds by an Agency

0
6. Amend Sec.  80.60 by revising the introductory text and adding a 
heading to the table to read as follows:


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

    The relationship between the Basic Hunter Education and Safety 
subprogram (Basic Hunter Education) and the Enhanced Hunter Education 
and Safety program (Enhanced Hunter Education) is in table 1 to Sec.  
80.60:

Table 1 to Sec.  80.60

* * * * *

Subpart G--Application for a Grant

0
7. Amend Sec.  80.82 by:
0
a. Revising paragraph (c)(2);
0
b. Redesignating paragraphs (c)(3) through (13) as paragraphs (c)(4) 
through (14);
0
c. Adding a new paragraph (c)(3); and
0
d. Revising newly designated paragraphs (c)(9)(iii) through (v) and 
(c)(10).
    The revisions and addition read as follows:


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

* * * * *
    (c) * * *
    (2) Purpose. State the purpose and base it on the need. The purpose 
states the desired outcome of the proposed project in general or 
abstract terms.
    (3) Objectives. State the objectives and base them on the need. The 
objectives state the desired outcome of the proposed project in terms 
that are specific and quantified.
* * * * *
    (9) * * *
    (iii) Request the Regional Director's approval for the additive or 
matching method. Describe how the agency proposes to use the program 
income and the expected results. Describe the essential need when using 
program income as match.
    (iv) Indicate whether the agency wants to treat program income that 
it earns after the grant period as either license revenue or additional 
funding for purposes consistent with the grant terms and conditions or 
program regulations.
    (v) Indicate whether the agency wants to treat program income that 
the subgrantee earns as license revenue, additional funding for the 
purposes consistent with the grant or subprogram, or income subject 
only to the terms of the subgrant agreement.
    (10) Budget narrative. (i) Provide costs by project and subaccount 
with additional information sufficient to show that the project is cost 
effective. Agencies may obtain the subaccount numbers from the 
Service's Regional Division of Wildlife and Sport Fish Restoration.
    (ii) Describe any item that requires the Service's approval and 
estimate its cost. Examples are preaward costs, capital improvements or 
expenditures, real property acquisitions, or equipment purchases.
    (iii) Include a schedule of payments to finish the project if an 
agency proposes to use funds from two or more annual apportionments.
* * * * *

Subpart H--General Grant Administration

0
8. Revise Sec.  80.97 to read as follows:


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

    Yes. A State fish and wildlife agency may barter to carry out a 
grant-funded project. A barter transaction is the exchange of goods or 
services for other goods or services without the use of cash. Barter 
transactions are subject to the cost principles at 2 CFR part 200.

0
9. Amend Sec.  80.98 by revising paragraph (a) introductory text and 
adding a heading to the table in paragraph (a) to read as follows:


Sec.  80.98   How must an agency report barter transactions?

    (a) A State fish and wildlife agency must follow the requirements 
in table 1 to Sec.  80.98(a) when reporting barter transactions in the 
Federal financial report:

Table 1 to Sec.  80.98(a)

* * * * *

Subpart I--Program Income

0
10. Revise Sec.  80.120 to read as follows:


Sec.  80.120  What is program income?

    (a) Program income is gross income received by the grantee or 
subgrantee and earned only as a result of the grant during the grant 
period. Upon request from the State agency and approval of the Service, 
the option at 2 CFR 200.307(b) may be allowed.
    (b) Program income includes revenue from any of the following:
    (1) Services performed under a grant.
    (2) Use or rental of real or personal property acquired, 
constructed, or managed with grant funds.
    (3) Payments by concessioners or contractors under an arrangement 
with the agency or subgrantee to provide a service in support of grant 
objectives on real property acquired, constructed, or managed with 
grant funds.
    (4) Sale of items produced under a grant.
    (5) Fees collected by the agency for delivering or providing hunter 
education, aquatic education, or other courses.
    (6) Royalties and license fees for copyrighted material, patents, 
and inventions developed as a result of a grant.
    (7) Sale of a product of mining, drilling, forestry, or agriculture 
during the period of a grant that supports the:
    (i) Mining, drilling, forestry, or agriculture; or
    (ii) Acquisition of the land on which these activities occurred.
    (c) Program income does not include any of the following:
    (1) Interest on grant funds, rebates, credits, discounts, or 
refunds.
    (2) Sales receipts retained by concessioners or contractors under 
an arrangement with the agency to provide a service in support of grant 
objectives on real property acquired, constructed, or managed with 
grant funds.
    (3) Cash received by the agency or by volunteer instructors to 
cover incidental costs of a hunter education, aquatic education, or 
other classes. Incidental costs are small amounts and typically not 
essential to the training delivery. Materials purchased at cost by the 
student, separate from course fees, are incidental costs.
    (4) Cooperative farming or grazing arrangements as described at 
Sec.  80.98.
    (5) Proceeds from the sale of real property, equipment, or 
supplies.

0
11. Revise Sec.  80.123 to read as follows:


Sec.  80.123   How may an agency use program income?

    (a) A State fish and wildlife agency may choose any of the three 
methods listed in paragraph (b) of this section for applying program 
income to Federal and non-Federal outlays. The agency

[[Page 44788]]

may also use a combination of these methods. The method or methods that 
the agency chooses will apply to the program income that it earns 
during the grant period and to the program income that any subgrantee 
earns during the grant period. The agency must indicate the method or 
methods that it wants to use in the project statement that it submits 
with each application for Federal assistance.
    (b) Program income must be spent within the grant period and 
program in which it is earned and before requesting additional Federal 
funds for the activity for which the program income is earned.
    (c) The three methods for applying program income to Federal and 
non-Federal outlays are in table 1 to Sec.  80.123(c):

                       Table 1 to Sec.   80.123(c)
------------------------------------------------------------------------
            Method                   Requirements for using method
------------------------------------------------------------------------
(1) Deduction................  (i) The agency must deduct the program
                                income from total allowable costs to
                                determine the net allowable costs.
                               (ii) The agency must use program income
                                for current costs under the grant unless
                                the Regional Director authorizes
                                otherwise.
                               (iii) If the agency does not indicate the
                                method that it wants to use in the
                                project statement, then it must use the
                                deduction method.
(2) Addition.................  (i) The agency must request the Regional
                                Director's approval in the project
                                statement.
                               (ii) The agency may add the program
                                income to the Federal and non-Federal
                                funds under the grant.
                               (iii) The agency must use the program
                                income for the purposes of the grant and
                                under the terms of the grant.
(3) Cost sharing or matching.  (i) The agency must request the Regional
                                Director's approval in the project
                                statement.
                               (ii) The agency must explain in the
                                project statement the expected program
                                income, how the agency proposes to use
                                the program income to satisfy matching
                                requirements, how the agency will use
                                program income earned in excess of
                                required match, and the primary
                                conservation or recreation objective
                                sufficient to show program income as a
                                secondary benefit.
                               (iii) If neither the agency's project
                                statement nor the award indicates how
                                program income in excess of matching
                                requirements will be applied, the agency
                                must use the deduction method.
------------------------------------------------------------------------


0
12. Revise Sec.  80.124 to read as follows:


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

    A State fish and wildlife agency must spend program income before 
requesting additional payments under an award. If the agency has 
unexpended program income on its final Federal financial report, it may 
use the income under a subsequent grant for any activity eligible for 
funding in the grant program that generated the income.

Subpart J--Real Property

0
13. Revise Sec.  80.137 to read as follows:


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

    If the director of the State fish and wildlife agency and the 
Regional Director jointly decide that real property acquired with grant 
funds is no longer useful or needed for its original purpose under the 
grant, the director of the agency must:
    (a) Propose another eligible purpose for the real property under 
the grant program and ask the Regional Director to approve this 
proposed purpose; or
    (b) Follow the regulations at 2 CFR 200.311 and consult with the 
Regional Director on how to treat proceeds from the disposition of real 
property.

Subpart L--Information Collection

0
14. Amend Sec.  80.160 by revising paragraphs (a)(4), (5), and (7), 
(b), and (c) to read as follows:


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

    (a) * * *
    (4) Provide a project statement that describes the need, purpose 
and objectives, results or benefits expected, approach, geographic 
location, explanation of costs, and other information that demonstrates 
that the project is eligible under the Acts and meets the requirements 
of the Federal Cost Principles and the laws, regulations, and policies 
applicable to the grant program (OMB Control Number 1018-0100).
    (5) Change or update information provided to the Service in a 
previously approved application (OMB Control Number 1018-0100).
* * * * *
    (7) Report as a grantee on progress in completing the grant-funded 
project (OMB Control Number 1018-0100).
    (b) The authorizations for information collection under this part 
are in the Acts and in 2 CFR part 200, ``Uniform Administrative 
Requirements, Cost Principles, and Audit Requirements for Federal 
Awards.''
    (c) Send comments on the information collection requirements to: 
U.S. Fish and Wildlife Service, Information Collection Clearance 
Officer, 5275 Leesburg Pike, MS: BPHC, Falls Church, Virginia 22041-
3803.

    Dated: August 15, 2019.
Ryan Hambleton,
Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2019-18187 Filed 8-26-19; 8:45 am]
 BILLING CODE 4333-15-P