Below is a list of 81 issues that we have received from Regional personnel, States, or in training that we wish to resolve through regulations during the 50 CFR 80 revision and creation of 50 CFR 75.  

 Please read through these questions and:

(1) Let us know which one(s) are important to you or your State/Region/Agency

(2) Let us know how you would hope that the issue will be resolved, and what language you would like to use

(3) Give appropriate background to justify your perspective

(4) Provide any additional issues that you feel should be resolved


High Priority Issues for Discussion 

  1. Geographic location: How do you describe the geographic location of a project in the project statement. The regulation at 50 CFR 80.82(c)(6) requires the applicant to provide information on the geographic location, but it does not describe any format for this information. (75)
  2. Technical assistance: Include technical assistance in the list of eligible activities for Wildlife Restoration and Sport Fish Restoration.  Define technical assistance and consider limits on what would be eligible for funding. (80)
  3. Budget information in applications. Review 50 CFR 80.82(c)(9), Budget Narrative, for any needed modification. Require the applicant to state how it determined indirect costs, i.e., is the applicant using the de minimis 10 percent rate or a negotiated rate. Require the submission of the recipient’s and any subrecipients’ current negotiated indirect cost agreement. Require the use of the SF 424 A and C. Require the applicant to supplement SF 424 C with an indirect-cost calculation in the Budget Narrative. Determine which budget categories on the SF 424 A and C are unnecessary. (75)
  4. Define law enforcement: Should the definition of law enforcement include: (a) the development of regulations and policies for hunting and fishing, and (b) preventive law enforcement? Examples of preventive LE are: leaflets for hunters and anglers; kiosks to provide information to hunters and anglers at hunter parking lots and boat landings; signs marking the boundaries of areas open or closed to hunting or fishing; and media releases related to hunting or fishing rules. (80)(Memorandum)
  5. Land acquisition in the Hunter Education subprogram and program: Include land acquisition as an eligible activity under both the Basic Hunter Education and Safety subprogram at 50 CFR 80.50(b) and the Enhanced Hunter Education and Safety program at 50 CFR 80.50(c). (80)
  6. Valuation of a Recipient's in-kind contribution of real property: Clarify 2 CFR 200.306(h)(2) on how you value a recipient’s in-kind matching contribution of real property for a project that requires the use of the property for a period less than perpetuity. Mellinger Email. (75)
  7. Symbols: Should we continue to “encourage” the display of the program logos (symbols) on completed projects in 50 CFR 80.100, or should we require their display. (80)
  8. Freshwater/saltwater split: Is there a simpler way to calculate the allocation of funds between marine and freshwater fisheries? During the last revision of 50 CFR 80 in 2010-11, a State fish and wildlife agency proposed a simpler way of calculating the allocation in its comments on the proposed rule. In our response to the comment, we committed to revisit this issue during the next rulemaking on 50 CFR 80. (80)
  9. Project purpose: Provide criteria on how to state the project purpose. (75)
  10. Comprehensive management system grants: Fully address comprehensive management systems and incorporate the remaining features from Service Manual chapter 522 FW 4. (80)
  11. How do we establish substantiality in character and design? Can a project include fundamentally different elements as long as it is substantial in character and design?  For example, is there any reason a project could not include land acquisition, construction, and equipment purchase if the purpose of the project is to establish a new WMA? (80)
  12. Loss of control and diversion: Establish criteria or give generic examples to determine what falls within a State’s authority to give general direction to its State fish and wildlife agency and what would constitute loss of control. Clarify that it is not a diversion if a State establishes construction requirements or land-management standards applicable across the board. Who has the authority to speak for the Service on loss of control and diversion? Are there any requirements for consultation between the Regional and Washington Offices? (80)
  13. Federal nexus significant financial assistance for restoration, maintenance, or PILT:  Currently, 50 CFR 80.134 describes requirements for State agencies to use lands acquired and capital improvements constructed with WSFR funds for their authorized purpose.  In the case of capital improvements, this is for the useful life of the improvement, and for land acquisition this can be in perpetuity. There are no requirements for States to ensure that license-acquired lands that are restored or maintained with WSFR grant funds continue to serve WSFR grant purposes after the period of performance of the restoration or maintenance grant. Same goes for lands that receive significant grant funding for PILT payments.  Consider requiring something similar to a recorded Notice of Federal Participation on these WSFR-managed and maintained lands.  A threshold would be needed to determine at what point a "Federal nexus" is created. (June 5 Issue from Colleen Sculley.) (80)
  14. Period of performance: Can you extend the period of performance after the end of the existing period?  If so, what are the criteria for doing so? (75)
  15. Encumbrances: Provide criteria for how to handle requests for: (a) right-of-way easements for utility lines or the widening of public roads across lands acquired, managed, or maintained with Federal financial assistance; or (b) discretionary access easements, i.e., not court-ordered, across such lands?” (2 CFR 200.311 Real property. (a) Title. Subject to the obligations and conditions set forth in this section, title to real property acquired or improved under a Federal award will vest upon acquisition in the non-Federal entity. (b) Use. Except as otherwise provided by Federal statutes or by the Federal awarding agency, real property will be used for the originally authorized purpose as long as needed for that purpose, during which time the non-Federal entity must not dispose of or encumber its title or other interests.) (75)
  16. Recruitment under WR, SFR and HE:  See what needs to be done to broaden eligibility.  See white paper dated November, 2013. (80)

 

 

Medium Priority Issues

  1. Budget changes: Consider the new language of 2 CFR 200.308(e) which provides the option of restricting “the transfer of funds among direct-cost categories or programs, functions, and activities for Federal awards in which the Federal share of the project exceeds [$150,000] and the cumulative amount of such transfers exceeds or is expected to exceed 10 percent of the total budget as last approved by the Federal awarding agency.” This new language requires a restatement of the policies in Service Manual chapter 522 FW 23 to achieve the same result as the chapter.  See the June 2013 Inspector General’s audit of the Coastal Impact Assessment program, recommendation #4 pp. 8 and 42. (75) Refer to the JTF-recommended chapter 522 FW 23, Budget Changes in FA Grants for more information.
  2. Effective dates  Incorporate into regulation the policies in the JTF-recommended Service Manual chapter 522 FW 25, Determining Approval and Effective Dates for FA Grants (80)
  3. Augmentation of appropriation: Clarify and provide examples in appendix (Appropriations Law, Vol. 2, Section 6. (75) Congress appropriates operating funds to Federal agencies and circumventing these financial limitations violates the prerogative of the legislature to set funding levels. 
  4. Program income: Clarify that program income must be used for the current costs of grant-funded project (see 2 CFR 200.305(b)(5)). If the amount of program income is more than can be used on the current grant, explain how these funds can be used based on the banked-income informal policy developed in October-December 2013 (75)
  5. Revolving Funds Clarify which funds qualify as revolving funds. Establish the policy that proceeds from the disposition of real property acquired with a revolving fund are returned to the Region. (75)
  6. Davis-Bacon Act: Address Davis-Bacon in the appendix (contacted DOL on 4/30 to discuss discrepancies between our guidance, 1992 SOL opinion, and what’s on the DOL web site. (75)
  7. Hunting on leased lands: Reexamine the TX parks and wildlife decision on the sale of permits to hunt on lands leased with WR funds.  If the decision is still appropriate, incorporate it into the regulations. See Joyce Johnson message from July, 2010.  Memorandum and background. (80)
  8. Volunteer instructors for hunter education:  A WSFR Regional Division recommended that we retain the following provision from the now-rescinded 522 FW 13, Hunter and Aquatic Education: – “The State may use volunteer services for meeting the State share of grant costs provided they require such services for completion of the project. (A)  You may use the value of volunteer instructors as an in-kind contribution to match only the costs of work on instructional objectives.  (B) To establish a value for volunteer instructors, you may use the hourly rate (including fringe benefits) for a State conservation officer, education officer, or similar position within the agency.” Clarify why it is necessary to: (a) be specific about matching only the costs of work on instructional objectives, (b) specify the positions, and (c) state the requirements on hourly rates and fringe benefits?  Does this add value to what’s in 2 CFR 200.434 and 2 CFR 200.306(e)?  If this policy is still appropriate after this reexamination, incorporate it into regulations. (80)
  9. Requirements for Replacement Lands:  If a loss of control occurs on land purchased with WSFR assistance, the State must either regain management control of it or replace lands with lands of equal value providing equal benefits. Is State land eligible for replacement if it is already protected?  Does this achieve the purposes of the acts and provide additional wildlife habitat?
  10. Contaminant survey: CERCLA, 42 U.S.C., 9601. Consult with Solicitor’s Office about the potential need for a contaminants survey if land is acquired under a cooperative agreement.  State that the recipient decides if a contaminants survey is needed for land acquired under a grant. (75)
  11. Access to boat ramps: Address the need for access to a boat ramp through by acquiring a right of way by easement or lease or in fee title.  See the Inspector General's management advisory of February 2012. (75)
  12. Capital improvements: Change capital improvement threshold from $10,000 to $25,000 and define the term adequately. This will increase the threshold for purposes of prior approvals and the requirements of 50 CFR 80, subpart J. (75)
  13. Coordination grants: Address issue of contact and location information for all coordinators in a coordination grant. (80)
  14. Eligibility of payments in lieu of taxes (PILT): Establish PILT as an eligible cost of the Wildlife and Sport Fish Restoration program, even for lands that were not acquired under the Wildlife Restoration program, the Sport Fish Restoration program, or any other Federal grant program. Emphasize 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. See Corrective Action Plan for the Inspector General’s audit report 2003-36, E-0007 2001-2003 for period July 99-Oct 01, and see the white paper on PILT revised in April 2015.  PILT info. (80)
  15. Administrative funds: Clarify, where necessary, 16 U.S.C. 669h(a) and 16 U.S.C. 777h(a), both of which are titled Authorized expenses for administration, especially outreach and the 20-hour minimum for students. The content on outreach will have to await the completion of an opinion from the General Law section of the Solicitor’s Office. (80)
  16. Reporting: Put the May 15, 2009, Interim Guidance for Financial and Performance Reporting into regulation. (75)
  17. Prizes, scholarships, and awards:  Should these be eligible for funding in the Wildlife and Sport Fish Restoration programs? (80)
  18. Catastrophic events/insurance: Can catastrophic events shorten the approved useful life? Review 2 CFR 200.447 on the allowability of insurance and indemnification. Determine if any clarifications are needed.  Consider discussing this item in the appendix as a potential cost to be included in a project budget if a structure is in a high-risk area for catastrophic damage and if the owner of the structure is not self-insured. (75)
  19. Real property: In 50 CFR 80.134, extend coverage to new developments, renovations, or maintenance projects on any real property controlled by the grant recipient during the life of the project.  (This deals with secondary uses not interfering with authorized purpose of the grant.)  Comment on the 50 CFR 80 proposed rule during the 2010-11 rulemaking.  This prevents some States from discounting or prorating grant percentages. (80)
  20. Proposed questions on audits:  The WSFR Branch of Audits recommends the following new regulatory sections:  (1) Will recipients participating in the Wildlife and Sport Fish Restoration Programs be audited? (2) What programs will be audited? (3) What will be examined during an audit? (4) Who will choose the auditors and fund the audits? (50)
  21. Rent: When is rent program income and when is it payment for the purchase of real property in the form a lease? (75)
  22. Field trial policy:  See the July 31, 2001 briefing for the Director. Review this briefing and decide whether it has any implications for regulation or the appendix.“Lands purchased with Pittman-Robertson funds are used for many wildlife-dependent recreation activities; each parcel is supposed to support multiple uses. Concerns have been raised recently, however, that the Fish and Wildlife Service is considering prohibiting the use of Pittman-Robertson lands for field trials. Field trials are dog competitions in which tests and training or related activities are conducted to improve the hunting abilities of, and identify those superior representatives of, the hunting breeds, as well as the skills of hunters. Field trials are a legitimate use of Pittman Robertson funded lands, provided that the field trials are not inconsistent with the objectives and purposes of the Act. “ Improvement Act Report in Congress. (80)
  23. Conservation easements: A State fish and wildlife agency recommended that we require a legally binding agreement between a State holding an easement and another entity that receives a concurrent right.  The agreement should describe concurrent responsibilities and authorities of each entity. Require that the agreement be recorded. (80)
  24. Eligibility of alligators, bullfrogs, and turtles: Should we include these species in the definition of wildlife or sport fish or alternatively include eligible activities oriented to these species under the Wildlife Restoration or Sport Fish Restoration programs?  Three States requested this in their comments on the 2010 proposed rule.  We did not make changes at that time because the issue had not gone through public notice and comment as part of a proposed rule.  (80)
  25. Multiyear funding: Consider modifying 50 CFR 80.67 to state that multiyear funding may be used for any allowable, eligible, and substantial project, whether grant-by-grant or CMS.
  26. Hunter education fees: Consider adding hunter education course fees to examples of program income at 50 CFR 80.120(b). (80)
  27. SF-LLL, Disclosure of Lobbying Activities. Provide more information on when the SF-LLL must be submitted. See 43 CFR 18, subpart A and Appendix A. (75)
  28. Cooperative agreements. Provide information on when to use a cooperative agreement and how it differs from a grant.  Provide examples of projects in the appendix that would qualify as cooperative agreements. (75)
  29. Monitoring: Incorporate monitoring procedures into the regulations, including site visits. See recommendations 1 and 3 in the 2013 CIAP audit on pp. 6 and 42. (75)
  30. Government revenue: Review the issue of the status of monthly service fees for new sewer lines to homes that were installed with Federal financial assistance. See the June 2013 Inspector General’s audit of the Coastal Impact Assessment program, page 39.  The Inspector General considered these fees to be program income instead of governmental revenue and the FWS concurred with the its finding. Develop regulatory language to clarify 2 CFR 200.307(c). (75)
  31. Match: Review 50 CFR 80.84 for consistency with 48 U.S.C. 1469a on match requirements in insular areas. (80, 75)
  32. Electronic signatures: The WSFR Audits Branch recommends that we clarify in regulation what constitutes an electronic signature. (75)
  33. Advance of funds: State how long you can keep an advance of funds before having to return it. Treasury set a 7-day limit for refunding drawdowns more than $10,000 in excess of immediate disbursement needs.  It also set a 30-day limit for refunding drawdowns less than $10,000 in excess of immediate disbursement needs (I TFRM 6-2010).  Determine if these time limits apply to WSFR grant programs.  If so, the Appendix may be the appropriate place to state these requirements? (75)
  34. License certification (80). The JTF is deliberating on this issue. We should consider the JTF’s recommendations before proposing any changes in 50 CFR 80.
  35. Segments:  Clarify what a grant segment is how WSFR uses them. (75)
  36. Endowment funds:  Any applications for endowments outside of real property? If not, the planned real property regulations are the appropriate location for this. Unless we can justify the use of endowment funds based on an implicit authorization in the establishing legislation of a grant program, several Comptroller General Opinions have determined that we cannot set one up with Federal or matching funds available under a financial assistance award. (75)
  37. Match: Can a recipient use excess match for a subsequent grant? See 522 FW 24.5 which applies to WR, SFR, and SWG, but the question goes beyond in-kind donations of real property. e.g. other in-kind donations, as well as excess cash match, if part of the proposed project cannot be completed. (75)
  38. Federal share and recipient share of proceeds from disposition of property: Clarify that the Federal share and recipient share are determined by the overall percentage of Federal and State funds in the financially assisted project, NOT the Federal and State share of the funds used to purchase a specific parcel.  This is based on informal advice from the Solicitor’s Office. (75)

 

Low-Priority Issues

 

  1. Volunteer time as match: Address Americorps and VISTA volunteers time as match.  See AGM workbook on Wiki with P.Barlow 2013 guidance disallowing the use of these volunteers’ hours as match.  (75)
  2. Program income clarification: Correct the one remaining instance in 50 CFR 80 where program income is used for income earned after the grant period. (80)
  3. Federal subrecipients: Can a Federal entity be a subrecipient under the provisions of the Federal Grant and Cooperative Agreement Act and despite the definition of recipient and subrecipient in 2 CFR 200.  If the answer is yes, then address how funds are transferred to the Federal entity.(75)
  4. Symbols: State in a new section of 50 CFR 80, at the appropriate subpart, that a manufacturer or importer of items subject to the excise tax that supports the Trust Funds does not need to enter into a formal agreement to use the program symbols (logos). This is consistent with the last sentence of the document titled Wildlife and Sport Fish Restoration Symbols, which is on the WSFR Tool Kit under General Guidance (80).
  5. Buy American Act(41 U.S.C. §8301-8305): Address the Buy American Act in the appendix. – Unless there is new information, we will avoid duplication of what is at 2 CFR 200 now. (75)
  6. Land reconciliation: Give guidance (and timetable?) for comprehensive lands reconciliation process.  Address 2 CFR 200.329 on Reporting on Real Property. (75)
  7. Project statement for hunter education projects: Retain the following provision from the now-rescinded 522 FW 13, Hunter and Aquatic Education: “For each project within a grant proposal or a grant agreement, provide a summary of work to be accomplished by location and the estimated cost of each during the GP or GA period.  If any project within the grant includes the construction of training facilities such as ranges, see 522 FW 10 for documentation requirements.” This was a Regional comment on the proposed rescission of 12 chapters in 2013-14. (80) If there’s a legitimate reason, it has to be based on more than (a) the hunter education specialists’ preference or (b) because it was in the rescinded chapter, especially due to the fact that other programs do not list similar requirements in regulation. 
  8. Program income as match: What criteria does the Service use in deciding whether to approve the matching alternative for the use of program income? (75)
  9. Wildlife damage control: Incorporate into regulation the wildlife damage control sections and possibly other elements of 522 FW 1, FA in Wildlife Restoration, and 522 FW 2, FA in Sport Fish Restoration. (80)
  10. Proportional drawdown of match: Clarify that proportional use of matching funds is NOT required unless it is required by a Treasury/State agreement (see 31 CFR 205.3(a) and 205.15(d)) or program regulations (see 50 CFR 80.96). (75)
  11. Proportional drawdown of funds for direct and indirect costs: Clarify that proportional use of matching funds IS required for State recipients, which does not include local governments, or institutions of higher education. (see 31 CFR 205.33(a))
  12. Treasury/State agreements: Explain in a general way the potential implications of a Treasury/State agreement (see 31 CFR 205, subpart A). (75)

  13. Law enforcement as an eligible activity: 50 CFR 80.54 designates law enforcement as an ineligible activity “except when necessary to carry out project purposes approved by the Regional Director.” Provide criteria for when law enforcement may be necessary or give examples in the appendix. (80)

  14. Convict labor:  State the conditions under which convict labor (peonage) may be used on a project.  See 519 FW 1, Compliance Requirements Summary, section 2g. (75)
  15. Profit: Address the implications of 2 CFR 200.400(g), which reads: “The non-Federal entity may not earn or keep any profit resulting from Federal financial assistance, unless expressly authorized by the terms and conditions of the Federal award.” Does the disposition of gas, oil, and other minerals from lands acquired with financial assistance constitute a profit? (75)
  16. Financial Systems and program income: See Region 3's comment on page 14 about financial management systems that are incapable of accounting for program income. Additionally, 2 CFR 200.302(b)(3) requires that recipients’ financial management systems must contain information on “income” among another things. (75)
  17. Patent rights: Address patent rights in the appendix (see 37 CFR 401). (75)
  18. Useful life: 50 CFR 80.82 (c)(5) Consider putting in the appendix a reference to a method that is based on professional engineering input. (75)
  19. Incurring costs before period of performance:  Make 50 CFR 80.94(b)(6) consistent with the wording of the proposed 520 FW 8.20.  This would require the applicant to obtain our concurrence that entering into a preaward contractual commitment to buy real property is necessary to take advantage of temporary circumstances favorable to the project or to meet legal deadlines. (75)
  20. Fee title vs fee simple: 50 CFR 80.130(c) and 80.132 use fee title, and other sections use fee simple. Standardize the use of these terms.  (80)
  21. Definitions in 50 CFR 80 vs real property chapers: Standardize the definitions in the proposed 520 FW 6 [the first real property chapter] and 50 CFR 80. (80)
  22. Real property disposition: 50 CFR 80.137(b)  Replace the language after “Request disposition instructions for the real property …” with the following: “…following the disposition requirements in the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards.” (80, but consider whether this section should be in 50 CFR 75 instead of 50 CFR 80)
  23. Risk assessments: Implement 2 CFR 200.205(b): “…[F]or competitive awards or cooperative agreements, the Federal awarding agency must have in place a framework for evaluating the risks posed by applicants before they receive Federal awards. …” Presumably this should include risk assessments of subrecipients. (The WSFR FAPO branch may have already developed something for Servicewide application.) See CIAP audit recommendation summary #4 p. 42 and p. 8 connected with risk assessment. (75)
  24. Sole source: Address competition and sole source and provide criteria for documentation.  Address the need to select appraisers competitively. See the Inspector General’s June 2013 audit of the Coastal Impact Assessment Program, pp 26, 27, and 47 in the audit. (75)
  25. Financial management systems: Address the implications of 2 CFR 200.302, which says that  States must follow their own laws and procedures to account for grant funds. (75)
  26. Using Federal rate schedules to determine reimbursement for equipment use:  State in regulation that applicants cannot use IRS and FEMA rate schedules to determine reimbursement for equipment use. (75)
  27. Teacher salaries: State the conditions under which teacher salaries can be used as in-kind match in the Aquatic Education subprogram. (80)
  28. Define Assets:  What does "assets" mean for the purposes of 50 CFR 80.90(F).  Define the term "control" as well.  
  29. Disposition of Equipment: 
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