50 C.F.R. PART 83—RULES IMPLEMENTING THE FISH AND WILDLIFE CONSERVATION ACT OF 1980
Title 50 - Wildlife and Fisheries
Authority: The Fish and Wildlife Conservation Act of 1980, 16 U.S.C. 2901.
Source: 47 FR 51142, Nov. 12, 1982, unless otherwise noted.
Note: The information collection requirement contained in this part has been approved by the Office of Management and Budget under 44 U.S.C. 3507 and assigned control number 1018–0048. As used in this part, the following terms mean: (a) Act. The Fish and Wildlife Conservation Act of 1980, Pub. L. 96–366 (16 U.S.C. 2901, et seq.). (b) Conservation plan. A plan for the conservation of fish and wildlife within a State which meets the requirements set forth in this part. (c) Designated State agency or State agency. The Commission, department, division or other agency of a State which has the primary legal authority for the conservation of fish and wildlife. If more than one agency is designated by the State to exercise such authority, the term means each such agency acting with respect to its assigned responsibilities. (d) Director. The Director of the U.S. Fish and Wildlife Service or his/her designee. (e) Federal Aid Manual. The publication of the U.S. Fish and Wildlife Service which contains policies, standards and procedures required for participation in the benefits of the Act. (f) Fish and Wildlife. Wild vertebrate animals that are in an unconfined state. (g) Nongame fish and wildlife. Fish and wildlife that: (1) Are not ordinarily taken for sport, fur, food, or commerce within the State except that any species legally taken for sport, fur, food, or commerce in some but not all parts of a State may be deemed nongame within any area where such taking is prohibited; and (2) Are not listed as endangered or threatened species under the Endangered Species Act of 1973 (16 U.S.C. 1531–1543); and (3) Are not marine mammals within the meaning of section 3(5) of the Marine Mammal Protection Act of 1972 (16 U.S.C. 1362(5)); and (4) Are not domesticated species that have reverted to a feral existence. (h) Plan species. Any species or subspecies or ecologic association of species and subspecies which is designated to be addressed through actions set forth in an approved conservation plan. (i) Project. A definitive proposal submitted by a State and approved by the regional director for funding under this Act. (j) Regional Director. The regional director of the U.S. Fish and Wildlife Service or his/her designee. (k) Secretary. The Secretary of the Interior or his/her designee. (l) State. Any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, the Virgin Islands, Guam, the Trust Territories of the Pacific Islands, and the Commonwealth of the Northern Mariana Islands. Participation is limited to designated State agencies. If a State places primary legal authority for the conservation of fish and wildlife in more than one agency, the governor or chief executive of that State shall designate the State agency which will serve to coordinate the State actions under this Act. The director of each designated State agency shall notify the regional director, in writing, of the official(s) authorized to sign Federal Aid documents and of any changes in such authorizations. In accordance with the provisions of the Act, the allocation of funds to the States shall take into account the area and population of each State. (a) Area of the land and water of each State shall be as determined by the Department of Commerce and shall include the area of coastal and Great Lakes waters within each State. (b) Population of each State shall be the most recent population estimates, as determined by the Department of Commerce. Funding under this Act may be approved by the regional director to carry out projects which meet the standards of substantiality as defined in §83.12 and which conform to one of the following: (a) A proposal to implement a nongame action in lieu of an approved conservation plan. Upon a showing of need, a State may request funding under this Act before a conservation plan is approved. Such a proposal must: (1) Be for the purpose of conserving, restoring, or otherwise benefitting nongame fish and wildlife, its habitats or its users; (2) Comply with standards contained in the Federal Aid Manual; and (3) Consist of work to be accomplished before October 1, 1986. (b) A proposal to develop or maintain a conservation plan. The designated State agency may apply for funding of a project for developing a conservation plan, coordinating or consolidating a conservation plan with other plans, or maintaining a previously approved conservation plan. State costs incurred later than September 30, 1991, for the development of a conservation plan cannot be approved for funding. (c) A proposal to implement actions described in an approved conservation plan. Such a proposal specifies and requests funding to cover one or more of the nongame actions described in the approved conservation plan. The following limitations shall apply to the eligibility of projects for funding under the Act: (a) Of the total estimated costs for any project proposed under this Act, not less than 80 percent shall be for work or activities for the principal benefit of nongame fish and wildlife resources or of the public use of these resources. (b) Upon approval of a conservation plan, all projects must be limited to actions required for implementing or revising the plan or for coordinating or consolidating the plan with other plans. (c) Not more than 10 percent of the costs of any project which is carried out in lieu of an approved conservation plan, or which is carried out under an approved conservation plan covering only nongame fish and wildlife resources, may be derived from the sale of hunting, fishing, and trapping licenses and from penalties (including forfeitures) for violations of hunting, fishing, and trapping laws of the State. (d) Not more than 10 percent of the estimated costs for projects to be funded shall be for law enforcement activities. (e) Not more than 10 percent of the cost of implementing any project under this Act shall be funded by in-kind contributions from third parties. Any difference of opinion over the eligibility of proposed activities or differences arising over the conduct of work may be appealed to the Director. Final determinations rests with the Secretary. Funds allocated to a State under the Act are available for obligation and expenditure during the fiscal year for which they are allocated and until the close of the succeeding fiscal year. For the purpose of this section, obligation of allocated funds occurs when a project agreement is approved by the Regional Director. To make application for funds allocated under this Act, the State shall submit to the regional director an Application for Federal Assistance. (a) Each application shall contain such information as the regional director may require to determine if the proposed activities are in accordance with the Act, the provisions of this part, and the standards contained in the Federal Aid Manual. (b) Applications must be signed by the director of the designated State agency or the official(s) delegated to exercise the authority and responsibilities of such director in committing the State to participation under the Act. A conservation plan submitted to the regional director for approval shall meet the requirements for substantiality set forth in §83.12(a) and the standards prescribed in the Federal Aid Manual, and shall: (a) Identify the species of nongame fish and wildlife, and other fish and wildlife deemed appropriate by the designated State agency which are within the State and are valued for ecological, educational, aesthetic, cultural, recreational, economic, or scientific benefits by the public; (b) Provide for inventory(ies) of the identified species (plan species) to determine: (1) Their population size, distribution, and range; and (2) The extent, condition, and location of their significant habitats. (c) Identify the significant problems which may adversely affect the plan species; (d) Determine actions which should be taken to conserve the plan species and their significant habitats. Actions proposed will seek to optimize population levels, population distributions, and human benefits while taking fully into account the effects on non-target species and user groups. The actions will utilize methods and procedures which will, to the maximum extent practicable, ensure the well-being and enhancement of the plan species; (e) Establish priorities for implementing the actions proposed in (d); (f) Provide for regular monitoring of the plan species and the effectiveness of the actions implemented; (g) Provide for the review of the plan and revision, if appropriate, at intervals of not more than 3 years; (h) Describe procedures by which inputs have been solicited from the public during plan development and by which inputs will be solicited during revision and implementation of the plan; (i) Indicate State and Federal agencies which were consulted during plan development and which will be consulted during plan implementation. If plan implementation will entail substantive cooperation with other agencies, an agreement describing the intended cooperation and signed by the involved parties must be executed before funding is authorized. Federal and State participation in the costs incurred in completion of approved work funded by this Act shall be limited as follows: (a) The Federal share may not exceed: (1) Ninety percent of the costs for development of conservation plans, except after September 30, 1984, the Federal share may not exceed 75 percent of the cost for development of conservation plans, and after September 30, 1991, no reimbursement may be paid under this Act for development of a conservation plan; (2) Seventy-five percent of the costs for implementing and revising an approved conservation plan, except the Federal share may be increased to 90 percent if two or more States have mutually agreed to cooperate in implementation projects, provided, however, that after September 30, 1991, the Federal share may not exceed 50 percent if the conservation plan covers only nongame species; (3) Seventy-five percent of the costs incurred prior to October 1, 1986, for projects which are not covered by an approved conservation plan, except the Federal share may be increased to 90 percent if two or more States have mutually agreed to cooperate in projects. (b) The State share of project costs: (1) May be in the form of cash or in-kind contributions, subject to the limitations described in §83.5 and the following conditions: (i) The allowability and valuation of in-kind contributions shall be in accordance with the provisions of OMB Circular A–102 and the policies and standards as described in the Federal Aid Manual. (ii) Volunteers proposed by the State to provide personal services to be claimed as in-kind contributions must possess qualifications appropriate to the service to be performed. The State must attest to such qualifications of all such volunteers based on the volunteers' training, experience or employment status, or upon an endorsement provided by a recognized institution, agency, or professional society. (2) May not be derived from other Federal funds. Whenever two or more States propose to cooperate in the revision of a conservation plan or in a conservation action which will result in a higher rate of Federal costsharing, such States shall describe in documentation the plan or action to be jointly undertaken. The proposed cooperation shall: (a) Require each cooperating State to accept and carry out a substantial share of the described undertaking; (b) Enhance the effectiveness of or reduce the total cost in accomplishing the project purpose; (c) Be supported by a memorandum of understanding executed by the cooperating States. Each project proposed for funding under the Act shall be substantial in character and design and shall be in conformance with the policies and standards contained in the Federal Aid Manual. (a) A substantial project for plan development or plan maintenance is one which: (1) Provides defined objectives related to completion or revision of the plan, with schedules for completion; (2) Utilizes accepted planning techniques and appropriate procedures; (3) Provides for public involvement; (4) Accomplishes its purpose at a reasonable cost; (5) Provides assurance that, upon completion of the plan, the State intends to be guided by the conservation plan being developed or maintained. (b) A substantial project for implementation of approved conservation plans is one which: (1) Identifies specific conservation actions contained in the plan; (2) Identifies the objectives to be accomplished related to the needs described in the plan; (3) Utilizes accepted conservation and management principles, sound design, and appropriate procedures. (c) A substantial project for actions in lieu of an approved conservation plan is one which: (1) Identifies and describes a need within the purposes of the Act; (2) Identifies the objectives to be accomplished based on the stated need; (3) Utilizes accepted conservation and management principles, sound design, and appropriate procedures; (4) Will yield benefits which are pertinent to the identified need at a level commensurate with project costs. (a) Funds provided under this Act shall be applied only to activities or purposes approved by the regional director or contained in a conservation plan approved by the regional director. If otherwise applied, such funds must be replaced by the State to maintain eligibility. (b) Real property acquired or constructed with Federal Aid funds must continue to serve the purpose for which acquired or constructed: (1) When such property passes from management control of the designated State agency, either the control must be fully restored to the designated State agency or the real property must be replaced using non-Federal Aid funds. Replacement property must be of equal value at current market prices and with equal or commensurate nongame fish and wildlife benefits as the original property. The State may be granted up to 3 years from the date of notification by the regional director, to acquire replacement property before becoming ineligible. (2) When such property is used for purposes which interfere with the accomplishment of approved purposes, the violating activities must cease and any adverse effects resulting must be remedied. (3) When such property is no longer needed or useful for its original purpose, and with prior approval of the regional director, the property shall be used or disposed of as provided in Attachment N of OMB Circular A–102. (c) Federal Aid funds shall not be used for the purpose of producing income. However, income producing activities incidental to accomplishment of approved purposes are allowable. Income derived from such activities shall be accounted for in the project records and its disposition shall be in accordance with Attachment E of OMB Circular A–102. Allowable costs are limited to those which are necessary and reasonable for accomplishment of the approved project or action and are in accordance with the cost principles of OMB Circular A–87. (a) All costs must be supported by source documents or other records as necessary to substantiate the application of funds. Such documentation and records are subject to review by the Secretary to determine the allowability of costs. (b) Costs incurred prior to the effective date of the project agreement are allowable only when specifically provided for in the project agreement. (c) Projects or facilities designated to include purposes other than those eligible under the Act shall provide for the allocation of costs among the various purposes. The method uses to allocate costs shall produce an equitable distribution of costs based on the relative used or benefits provided. Payments to the State shall be made for the Federal share of allowable costs incurred by the State in accomplishing approved projects. (a) Requests for payments shall be submitted on forms furnished by the regional director. (b) Payments shall be made only to the office or official specified by the designated State agency and authorized under the laws of the State to receive public funds for the State. (c) All payments are subject to final determination of allowability based on audit. Any overpayments made to the State shall be recovered as directed by the regional director. The State is responsible for maintenance of all capital improvements acquired or constructed with Federal Aid funds throughout the useful life of each improvement. Costs for such maintenance are allowable when provided for in approved projects. The maintenance of improvements acquired or constructed with non-Federal Aid funds are allowable costs when such improvements are necessary to accomplishment of project purposes as approved by the regional director, and when such costs are otherwise allowable by law. In the conduct of activities funded under the Act, the State is responsible for: (a) The supervision of each project to assure that it is conducted consistent with the project documents and that it provides: (1) Proper and effective use of funds; (2) Maintenance of project records; (3) Timely submission of reports; (4) Regular inspection and monitoring of work in progress. (b) The selection and supervision of project personnel to assure that: (1) Adequate and competent personnel are available to carry the project through to a satisfactory and timely completion; (2) Project personnel perform the work to ensure that time schedules are met, projected work units are accomplished, other performance objectives are achieved, and reports are submitted as required. (c) The accountability and control of all assets to assure that they serve the purposes for which acquired throughout their useful life. (d) The compliance with all applicable Federal, State, and local laws. (e) The settlement and satisfaction of all contractual and administrative issues arising out of procurement entered into. The State shall maintain current and complete financial, property and procurement records in accordance with requirements contained in the Federal Aid Manual and OMB Circular A–102. (a) Financial, supporting documents, and all other records pertinent to a project shall be retained for a period of 3 years after submission of the final expenditure report on the project. If any litigation, claim, or audit was started before the expiration of the 3-year period, the records shall be retained until the resolution is completed. Records for nonexpendable property shall be retained for a period of 3 years following final disposition of the property. (b) The Secretary and the Comptroller General of the United States, or any of their duly authorized representatives, shall have access to any pertinent books, documents, papers and records of the State. The State must control lands or waters on which capital improvements are made with Federal Aid funds. Control may be exercised through fee title, lease, easement, or agreement. Control must be adequate for protection, maintenance, and use of the improvement throughout its useful life. The State must agree to and certify that it will comply with all applicable Federal laws, regulations, and requirements as they relate to the application, acceptance, and use of Federal funds under the Act. The Secretary shall have the right to review or inspect for compliance at any time. Upon determination of noncompliance, the Secretary may terminate or suspend any actions or projects in noncompliance, or may declare the State ineligible for further participation in program benefits until compliance is achieved. The State is required to conduct an audit at least every two years in accordance with the provisions of Attachment P of OMB Circular A–102. Failure to conduct audits as required may result in withholding of grant payments or such other sanctions as the Secretary may deem appropriate. [49 FR 30074, July 26, 1984]
Title 50: Wildlife and Fisheries
PART 83—RULES IMPLEMENTING THE FISH AND WILDLIFE CONSERVATION ACT OF 1980
Section Contents
§ 83.1 Definitions.
§ 83.2 Participant eligibility.
§ 83.3 Allocation of funds.
§ 83.4 Eligible undertakings.
§ 83.5 Limitations.
§ 83.6 Appeals.
§ 83.7 Availability of funds.
§ 83.8 Submission of proposals for funding.
§ 83.9 Conservation plans.
§ 83.10 Cost sharing.
§ 83.11 Cooperation between States.
§ 83.12 Project requirements.
§ 83.13 Application of funds provided under the Act.
§ 83.14 Allowable costs.
§ 83.15 Payments.
§ 83.16 Maintenance.
§ 83.17 Responsibilities.
§ 83.18 Records.
§ 83.19 Land control.
§ 83.20 Assurances.
§ 83.21 Audits.
§ 83.1 Definitions.
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§ 83.2 Participant eligibility.
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§ 83.3 Allocation of funds.
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§ 83.4 Eligible undertakings.
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§ 83.5 Limitations.
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§ 83.6 Appeals.
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§ 83.7 Availability of funds.
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§ 83.8 Submission of proposals for funding.
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§ 83.9 Conservation plans.
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§ 83.10 Cost sharing.
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§ 83.11 Cooperation between States.
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§ 83.12 Project requirements.
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§ 83.13 Application of funds provided under the Act.
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§ 83.14 Allowable costs.
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§ 83.15 Payments.
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§ 83.16 Maintenance.
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§ 83.17 Responsibilities.
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§ 83.18 Records.
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§ 83.19 Land control.
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§ 83.20 Assurances.
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§ 83.21 Audits.
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