# Fiscal Year (FY) 2002 Landowner Incentive Program (Non Tribal Portion) for States, Territories and the District of Columbia; Final Policy With Implementation Guidelines, and Request for Proposals

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A02-24859

## Record

- **Collection:** Federal Register
- **Document type:** Notice
- **Published:** October 1, 2002
- **Citation:** 67 FR 61640

## Text

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

RIN 1018-AI55

Fiscal Year (FY) 2002 Landowner Incentive Program (Non Tribal
Portion) for States, Territories and the District of Columbia; Final
Policy With Implementation Guidelines, and Request for Proposals

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final policy with implementation guidelines; notice of request
for proposals.

-----------------------------------------------------------------------

SUMMARY: The Department of the Interior and Related Agencies
Appropriations Act 2002 allocated $40 million from the Land and Water
Conservation Fund for conservation grants to States, the District of
Columbia, Puerto Rico, Guam, the United States Virgin Islands, the
Northern Mariana Islands, and American Samoa (hereafter referred to
collectively as States), and Tribes under a Landowner Incentive Program
(LIP).

[[Page 61641]]

This notice provides the final guidelines for how the U.S. Fish and
Wildlife Service (Service) will implement LIP with the States and
serves as the Request for Proposals for the FY 2002 LIP funds. The
Service will address the Tribal component of LIP under a separate
Federal Register notice.

DATES: This Policy and these Implementation Guidelines are effective
October 1, 2002. We must receive your grant proposal no later than
December 2, 2002. We will not accept facsimile grant proposals.

ADDRESSES: Submit grant proposals to the Division of Federal Aid, 4401
North Fairfax Drive, Suite 140, Arlington, VA 22203-1610. The
administrative record for this notice, including copies of comments
received, is available for viewing at this location Monday through
Friday, 8 a.m. to 4 p.m.

FOR FURTHER INFORMATION CONTACT: Tim Hess, Biologist, U.S. Fish and
Wildlife Service, Division of Federal Aid, 4401 North Fairfax Drive,
Suite 140, Arlington, VA 22203-1610; telephone (703) 358-2156; fax
(703) 358-1837; e-mail [email protected], or the Regional Office
contact persons identified in the answer to Question 25 in the
Implementation Guidelines.

SUPPLEMENTARY INFORMATION:

Background

In recent years, natural resource managers have increasingly
recognized that private lands play a pivotal role in linking or
providing important habitats for fish, wildlife, and plant species. To
protect and enhance these habitats through incentives for private
landowners, the President's Budget for Fiscal Year 2002 requested
funding to address this need and Congress responded by appropriating
$40 million from the Land and Water Conservation Fund for the Service
to establish and administer a new Landowner Incentive Program (LIP).
The Service will award grants to States for programs that enhance,
protect, or restore habitats that benefit federally listed, proposed,
or candidate species, or other at-risk species on private lands. A
primary objective of LIP is to establish, or supplement existing, State
landowner incentive programs that provide technical and financial
assistance, including habitat protection and restoration, to private
landowners for the protection and management of habitat to benefit
federally listed, proposed, or candidate species, or other at-risk
species on private lands as stated in the appropriations language. LIP
complements other Federal private lands conservation programs that
focus on the conservation of habitat.

Introduction

The Federal (Service) role in implementation of LIP is to provide
policy, guidance, funds, and oversight to States who seek to develop
and implement a qualifying landowner incentive program. The State role
in implementation of LIP is to provide technical and financial
assistance to private landowners for projects for the protection and
management of habitat for species-at-risk. The private landowners' role
is to provide the habitat necessary to accomplish the objectives of LIP
and assist in project implementation.
The Service is soliciting grant proposals for Federal funding under
LIP through the publishing of this policy and guidelines. The remainder
of this document is divided into three sections: (1) our Final LIP
Implementation Guidelines that contain direction on grant proposal
submission; (2) the comments received concerning the Proposed LIP
Policy and Implementation Guidelines published in the Federal Register
on June 7, 2002 (67 FR 39414), and our responses; and (3) a description
of the regulatory requirements associated with issuing the Final LIP
Policy with Implementation Guidelines.

LIP Final Implementation Guidelines

Definitions of Terms Used in These Guidelines

``Species-at-risk'' is defined as any Federally listed, proposed,
or candidate animal or plant species or other species of concern as
determined and documented by a State. Species classified by the State
as a ``species-at-risk'' must be identified as such in its grant
proposal.
``Private land'' is considered any nongovernment-owned land.
A ``project'' is a discrete task to be undertaken by or with
private landowners for the accomplishment of the defined LIP
objectives.

Program Requirements

1. What is the objective of this program? The primary objective of
this program is to establish or supplement State landowner incentive
programs that protect and restore habitats on private lands, to benefit
Federally listed, proposed, or candidate species or other species
determined to be at-risk, and provide technical and financial
assistance to private landowners for habitat protection and
restoration.
2. How will the Tribes participate in LIP? The Service is
allocating $4 million of the total funds appropriated under LIP to
Tribes for a competitive grant program that we will describe in a
separate Federal Register notice. For Tribal LIP grant information
contact Pat Durham, U.S. Fish and Wildlife Service, Office of Native
American Liaison, 1849 C Street NW., Mail Stop 3251, Washington, DC
20240 or call (202) 208-4133.
3. Does LIP require plans to be developed like the State Wildlife
Grant Program (FY 2002) and the Wildlife Conservation and Restoration
Program? No.
4. Who can apply for an LIP grant? The State agency with primary
responsibility for fish and wildlife will be responsible for submitting
all proposals to the U.S. Fish and Wildlife Service, Division of
Federal Aid (FA). All other governmental entities, individuals, and
organizations, including Tribes, may partner with or serve as a
subgrantee to that fish and wildlife agency.

Fiscal Issues

5. How will the Service distribute the available $40 million? The
Service will allocate $34.8 million for competitive grants to States,
$4.0 million for Tribes, and $1.2 million for program administration by
the Service.
6. What is the non-Federal match requirement for LIP grants? The
Service requires a minimum of 25% non-Federal match for LIP grants
(i.e. at least 25 percent of the total costs must come from sources
other than LIP or other federal funds). The U.S. Virgin Islands, Guam,
American Samoa, and the Northern Mariana Islands are exempt from
matching requirements for this program (based on 48 U.S.C. 1469a. (d)).
7. May the required non-Federal match be in-kind contributions?
Yes. Allowable in-kind contributions are defined in Title 43 of the
Code of Federal Regulations (43 CFR) part 12.64. The following Web site
provides additional information http://www.nctc.fws.gov/fedaid/toolkit/
4312c.pdf.

Grant Administration

8. How will the Service award grants to States? The Service will
use a two-tiered award system. We will assess Tier-1 grant proposals to
see that they meet minimum eligibility requirements. The Service will
rank Tier-2 grants based on criteria described in this notice and award
grants after a national competition.
9. What are the intended objectives of Tier-1 grants? The Service
intends that Tier-1 grants fund staff and associated support necessary
to develop or

[[Page 61642]]

enhance an existing landowner program. Through the development of
plans, outreach, and associated activities that assist in the
accomplishment of projects on private lands, these programs should
benefit private landowners and other partners to help manage and
protect habitats that benefit species-at-risk.
10. What are the eligibility requirements for Tier-1 grants? To
receive a Tier-1 grant a State program must demonstrate in its proposal
that it can meet all of the following:
(a) Deliver technical and financial assistance to landowners;
(b) Provide for appropriate administrative functions such as fiscal
and contractual accountability;
(c) Use LIP grants to supplement and not replace existing funds;
(d) Distribute funds to landowners through a fair and equitable
system;
(e) Provide outreach and coordination that assist in administering
the program; and
(f) Describe a process for the identification of species-at-risk,
and a process for the identification of clear, obtainable and
quantified goals and performance measures that will help achieve the
management goals and objectives of LIP. Through this program, the
States' efforts and leadership will help the Service meet its Long-Term
and Annual Performance Goals.\1\
---------------------------------------------------------------------------

\1\ The two relevant Service goals are the Sustainability of
Fish and Wildlife Populations (Goal 1.2) and Habitat Conservation
(Goal 2.3), which can be found in the Service's Long Term Strategic
Plan for 2000 to 2005 at http://planning.fws.gov/
usfwstrategicplanv3.pdf. Related Service planning and results
reports can be found at http://planning.fws.gov.
---------------------------------------------------------------------------

11. What are the intended objectives of Tier-2 grants? The
objective of a Tier-2 grant should place a priority on the
implementation of State programs that provide technical and financial
assistance to the private landowner. Programs should emphasize the
protection and restoration of habitats that benefit Federally listed,
proposed, or candidate species, or other species-at-risk on private
lands. The Service generally intends a Tier-2 grant to fund the
expansion of existing State landowner incentive programs or those
created under Tier-1 grants.
12. What criteria will the Service use to rank Tier-2 grants? The
Service proposes to use the following criteria to rank Tier-2
proposals:
(a) Proposal provides clear and sufficient detail to describe the
program. States are encouraged to describe any projects that are part
of a broader scale conservation planning effort at the State or
regional level. (0-10 points)
(b) Proposal describes adequate management systems for fiscal,
contractual and performance accountability (State), including annual
monitoring and evaluation of progress toward desired program objectives
and performance measures and goals identified in the ``expected results
or benefits'' section of the grant application (landowner and State).
(0-10 points)
(c) Proposal describes the State's fair and equitable system for
fund distribution. For example, States develop their own process to
evaluate and prioritize their project proposals based on criteria such
as species needs, priority habitats, compliance with State and Federal
requirements, and feasibility of success and select projects for grant
proposal funding based on their highest priority standing. (0-10
points)
(d) Proposal describes outreach efforts used to effect broad public
awareness, support, and participation. (0-10 points)
(e) Proposal identifies by name the species-at-risk to benefit from
the proposal. Points increase from zero to 10 as the State identifies
more species.
(f) Proposal describes the percentage of the State's total LIP
Tier-2 program funds identified for use on private land projects as
opposed to staff and related administrative support costs. Points
increase from zero to five as the percentage of funds identified for
staff and related administrative costs decreases in comparison to the
total program costs.
(g) Proposal identifies the percentage of total nonfederal fund
cost sharing. Points increase from zero to five as the percentage of
nonfederal cost sharing on the grant increases above the minimum cost
share.
(h) Proposal demonstrates the urgency of the projects or actions
that are to benefit the species targeted, and the short-term and long-
term benefits anticipated to be gained. (0-5 points)
13. Are there funding limits (caps) for LIP? Yes.
(a) The Service will cap Tier-1 grants at $180,000 for State fish
and wildlife agencies, and $75,000 for Territories and the District of
Columbia.
(b) In addition, no State may receive more than $1.74 million Tier-
1 and Tier-2 funds combined from the FY 2002 appropriation.
14. May a State submit more than one proposal? States may submit
one proposal each for Tier-1 and Tier-2 grants under this notice.
However, funding limits still apply, as described in the answer to
Question 13.
15. If some FY 2002 funds remain after awarding Tier-1 and Tier-2
grants, how will the Service make them available to the States? We will
announce subsequent requests for proposals until all LIP funds are
obligated. States that have not reached the cap may submit an
additional proposal during future requests for proposals.
16. Will interest accrue to the account holding LIP funds and if so
how will it be used? No. LIP funds were not approved for investing, and
as a result no interest will accrue to the account.
17. What administrative requirements must States comply with in
regard to LIP? States must comply with 43 CFR part 12 that provides the
administrative regulations (http://www.nctc.fws.gov/fedaid/toolkit/
4312c.pdf) and OMB Circular A-87 that provides cost principles (http://
www.whitehouse.gov/omb/circulars).
18. What information must a State include in a grant proposal? An
LIP grant proposal must include an Application for Federal Assistance
(SF-424) and must identify whether it is a Tier-1 or Tier-2 proposal.
The proposal must also include statements describing the need,
objectives, expected results or benefits, approach or procedures,
location, and estimated cost for the proposed work (OMB Circular A-
102). The expected results or benefits section must identify the
State's discrete, obtainable and quantified performance measures to be
accomplished (for example, the anticipated number of acres of wetlands
or stream miles to be restored, or the number of at-risk species with
improved status) that will address the goals of LIP and, at the same
time, the Service's Long-Term Goals of Sustainability of Fish and
Wildlife Population \2\ (Goal 1.2) and Habitat Conservation \3\ (Goal
2.3).
---------------------------------------------------------------------------

\2\ By the end of 2005, 404 species listed under the Endangered
Species Act as threatened or endangered for a decade or more will be
stable or improving, 15 species will be delisted due to recovery,
and a listing of 12 species at risk is made unnecessary due to
conservation.
\3\ By 2005, trust fish and wildlife populations, threatened and
endangered species, and species of special concern will be improved
by enhancing and/or restoring or creating 550,000 acres of wetlands
habitat, restoring 1,000,000 acres of upland habitats, and enhancing
and/or restoring 9,800 riparian or stream miles of habitat off
Service land through partnerships and other conservation strategies.
---------------------------------------------------------------------------

The grant proposal should also clearly identify how each of the
minimum eligibility requirements (Tier-1) and ranking criteria (Tier-2)
are addressed. The SF-424 is available from FA at any Service Regional
Office or at http://www.nctc.fws.gov/fedaid/toolkit/formsfil.pdf.
19. Where should a State send grant proposals? States should submit
all LIP

[[Page 61643]]

proposals to the U.S. Fish and Wildlife Service, Division of Federal
Aid, 4401 North Fairfax Drive, Suite 140, Arlington, VA 22203-1610.
20. When are proposals due to the Service? The Service will accept
proposals between October 1, 2002 and December 2, 2002.
21. What process will the Service use to evaluate and select
proposals for funding? The Service will evaluate all proposals that are
received by the end of the period set forth in the answer to Question
20, above. Successful proposals will then be selected based on the
final eligibility and selection criteria in the Implementation
Guidelines, and will be subject to the final approval of the Assistant
Secretary for Fish and Wildlife and Parks. The Service will notify all
applicants of the results as soon as practicable but within 60 days of
the deadline for submission of proposals.
22. Once a proposal is selected for funding, what additional grant
documents must the applicant submit and to whom? In addition to the
Application for Federal Assistance submitted with the original
proposal, the Service requires the following documents: a Grant
Agreement (Form 3-1552) and a schedule of work the State proposes to
fund through this grant. Additionally, the Service, in cooperation with
the applicants, must address Federal compliance issues, such as the
National Environmental Policy Act, the National Historic Preservation
Act, and the Endangered Species Act. Regional Office FA staff can
assist in explaining the procedures and documentation necessary for
meeting these Federal requirements. The States must send this
additional documentation to the appropriate Regional Office where FA
staff will approve the grant agreement to obligate funds. See the
answer to Question 25 for Regional Office locations and http://
www.nctc.fws.gov/fedaid/toolkit/fagabins.pdf for additional
information.
23. What reporting requirements must States meet once funds are
obligated under an LIP grant agreement? The Service requires an annual
progress report and Financial Status Report (FSR) for grants longer
than one year. In addition, a final performance report and FSR (SF-269)
are due to the Regional Office within 90 days of the grant agreement
ending date.
In its annual report, the State must include a list of project
accomplishments in relation to those which were planned in the grant
agreement. The number of upland and wetland acres and the number of
riparian/stream miles restored or improved (performance measures), and
the species benefitted should be provided. This information will help
demonstrate the States' efforts and leadership in helping the LIP meet
the Service's national goals for Fish and Wildlife Sustainability (1.2)
and Habitat Conservation (2.3). The effectiveness of each State's
program, as reported in its annual progress reports, will be an
important factor considered during the grant award selection process in
subsequent years.
24. Will landowners who have LIP projects implemented on their
property be required to leave project improvements in place for a
specific period? States should address this issue in their grant
proposals, landowner incentive programs, and agreements with individual
landowners. Habitat improvements should remain in place to realize the
desired benefits for species-at-risk.
25. Whom can I contact in the Service about the LIP program in my
local or regional area? Correspondence and telephone contacts for the
Service are listed by Region below.

Region 1. Hawaii, Idaho, Oregon, Washington, California, Nevada,
American Samoa, Guam, and Commonwealth of the Northern Mariana Islands.

Regional Director, Division of Federal Aid, U.S. Fish and Wildlife
Service, 911 NE 11th Avenue, Portland, Oregon 97232-4181, LIP Contact:
Jim Greer, (503) 231-6128

Region 2. Arizona, New Mexico, Oklahoma, and Texas.

Regional Director, Division of Federal Aid, U.S. Fish and Wildlife
Service, 500 Gold Avenue SW, Room 4012, Albuquerque, New Mexico 87102,
LIP Contact: Bob Anderson, (505) 248-7459

Region 3. Illinois, Indiana, Iowa, Michigan, Minnesota, Missouri,
Ohio, and Wisconsin.

Regional Director, Division of Federal Aid, U.S. Fish and Wildlife
Service, Bishop Henry Whipple Federal Building, One Federal Drive, Fort
Snelling, Minnesota 55111-4056, LIP Contact: Lucinda Corcoran, (612)
713-5135

Region 4. Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana,
Mississippi, North Carolina, South Carolina, Tennessee, Puerto Rico,
and the U.S. Virgin Islands.

Regional Director, Division of Federal Aid, U.S. Fish and Wildlife
Service, 1875 Century Boulevard, Suite 200, Atlanta, Georgia 30345, LIP
Contact: Marilyn Lawal, (404) 679-7277
Region 5. Connecticut, Delaware, District of Columbia, Maine,
Maryland, Massachusetts, New Hampshire, New Jersey, New York,
Pennsylvania, Rhode Island, Vermont, Virginia, and West Virginia.

Regional Director, Division of Federal Aid, U.S. Fish and Wildlife
Service, 300 Westgate Center Drive, Hadley, MA 01035-9589, LIP Contact:
Vaughn Douglas, (413) 253-8502

Region 6. Colorado, Kansas, Montana, Nebraska, North Dakota, South
Dakota, Utah, and Wyoming.

Regional Director, Division of Federal Aid, U.S. Fish and Wildlife
Service, P.O. Box 25486, Denver Federal Center, Denver, Colorado 80225-
0486, LIP Contact: Jacque Richy, (303) 236-8155 ext. 236

Region 7. Alaska.

Regional Director, Division of Federal Aid, U.S. Fish and Wildlife
Service, 1011 East Tudor Road, Anchorage, Alaska 99503-6199, LIP
Contact: Al Havens (907) 786-3435

Analysis of Public Comment and Changes Made to the Proposed LIP
Implementation Guidelines

On June 7, 2002, the Service published a notice in the Federal
Register (67 FR 39414) and requested comments on the proposed
implementation guidelines for the FY 2002 Landowner Incentive Program
(Non Tribal Portion) for States, Territories, and the District of
Columbia. The Service received 25 written responses by the close of the
comment period on July 8, 2002. The responses came from the following:
Arizona Game and Fish Department; Delaware Department of Natural
Resources and Environmental Control; Ducks Unlimited; Georgia
Department of Natural Resources; Hawaii Department of Land and Natural
Resources; International Association of Fish and Wildlife Agencies;
Louisiana Forestry Association; Michigan Department of Natural
Resources; Montana Fish, Wildlife and Parks; National Association of
Conservation Districts; Nebraska Game and Parks Commission; Ocean
Nature and Conservation Society; Ohio Department of Natural Resources;
Oregon Department of Fish and Wildlife; Red Lake Band of Chippewa
Indians; Texas Farm Bureau; Texas Parks and Wildlife Department; The
Nature Conservancy; Turner Endangered Species Fund; U.S. National Park
Service; Vermont Agency of Natural Resources; Walla Walla County
Conservation District; Wapiti Ridge Coordinated Resource Management;
Wildlife Management Institute; and

[[Page 61644]]

Wisconsin Department of Natural Resources.
We received a total of 50 substantive comments from the 25 written
responses covering a wide range of topics. Of these, 26 comments dealt
with the ranking criteria and scoring process. Six organizations or
agencies wrote letters that indicated their overall support for LIP
with no additional comments that required a response. The following is
a list of substantive comments received and our responses to those
comments.

Comments Not Directly Related to the Scoring Process and Ranking
Criteria

Comment 1. We recommend that the final guidelines for LIP clearly
indicate that projects that advance imperiled species recovery through
means other than habitat management are considered appropriate for LIP.
Response: The Interior Appropriations bill language states that the
grants are to be used to provide technical and financial assistance to
private landowners for the protection and management of habitat to
benefit federally listed, proposed, or candidate species, or other at-
risk species on private lands. The projects therefore must have a clear
relationship to habitat, and this relationship must be spelled out in a
State's grant proposal.
Comment 2. ``Species-at-risk'' needs to be better defined.
Response: We believe the intent of Congress was to address species
such as those found on Federal and State protected species lists, while
at the same time allowing the States to determine if additional species
should also be considered at-risk (that have similar biological
concerns as those already listed) and covered by their LIP program.
States should include their current LIP list of species-at-risk in
their grant proposal.
Comment 3. We encourage the Service to take a flexible, progressive
perspective in working with the States to define ``at-risk'' species.
Response: Each State wildlife agency has full authority in
determining its species-at-risk, and in justifying their focus on those
species identified in the grant proposal. (Also see response to Comment
2).
Comment 4. It should be made clearer in the guidelines that LIP
programs can also be applied to riparian and shoreline private lands
that provide habitat for aquatic species-at-risk found in adjoining
public waters.
Response: Riparian and shoreline protection and restoration
activities, and also fish migration barrier removal activities, on
private lands qualify if the habitat benefits for the species-at-risk
are clearly identified no matter the ownership where the species
reside.
Comment 5. Private land initiatives should promote a holistic view
of the habitat needs of species * * * we feel that practices and
actions taken on private lands should consider an array of species.
Response: The program's objective is to benefit species-at-risk, so
the grant proposal must identify those species. One criterion used to
rank proposals ((e) in the answer to Question 12) involves the number
(array) of species-at-risk benefitted, with a greater number of species
benefitted leading to a higher score.
Comment 6. The Service should encourage and make it possible for
the States to approach assistance to landowners with administrative
flexibility.
Response: The Service is requiring compliance with only those
administrative rules mandated for this program by existing Federal
Regulations in 43 CFR part 12. State agencies will determine
administrative procedures involving private landowners and other
partners.
Comment 7. We encourage the Service to give preference to
applications for projects that are part of a broad-scale conservation
planning effort.
Response: We have added to our description of the first proposed
ranking criterion ((a) in the answer to Question 12) to address this
point.
Comment 8. It would make sense to allow the ``lead entities''
designated by the Salmon Recovery Fund Board [in Washington] to submit
grant proposals directly to the Service and compete for this funding.
Response: Congress stipulated that LIP grants were available for
States and Territories only. The Service will utilize the State fish
and wildlife agencies as the eligible grantees due to their primary
responsibility for wildlife conservation among State agencies. All
other agencies, organizations, and individuals working with private
landowners on species-at-risk habitat issues are encouraged to
establish partnerships with the State fish and wildlife agencies.
Comment 9. In cases where a State wildlife agency does not apply
for funding under this initiative, we believe that other State agencies
involved in wildlife management should be permitted to apply.
Response: At this time, we are not aware of any State fish and
wildlife agencies that are not considering the submission of an LIP
grant proposal. If notified, the Service would consider another State
agency designated by the Governor.
Comment 10. Are nongovernmental (nonprofit) individuals and
organizations allowed to partner with or serve as a subgrantee to the
fish and wildlife agency?
Response: Yes, both governmental and nongovernmental organizations
and individuals may partner with or serve as a subgrantee of a State
fish and wildlife agency.
Comment 11. We suggest that LIP implementation guidelines use the
same regional allocation formula as has been proposed in the Service's
Private Stewardship Grant Program.
Response: The Congressional language for LIP requires the program
to be competitive, which we interpret to be competitive at the national
level. We believe the disbursement of FY 2002 LIP funds can be done
efficiently and achieve a broad geographic distribution through a
national review and selection process rather than a regional allocation
process.
Comment 12. A requirement for State agencies to provide in excess
of a 25 percent match for grants may prove so costly as to discourage
participation.
Response: LIP grants require only a 25% nonfederal match (see the
answer to Question 6 in the Implementation Guidelines). Increased
nonfederal matching shares beyond 25% are scored more favorably under
one of the ranking criteria (see (g) in the answer to Question 12), but
a match greater than 25% is not required.
Comment 13. Accounting requirements and processes for in-kind and
matching contributions that are too cumbersome and costly may cause
motivated State agencies to decline to participate in this initiative.
Response: Matching contribution (including in-kind) administrative
and audit requirements are provided in Title 43 of the Code of Federal
Regulations, Part 12 for all Department of the Interior assistance
programs, including LIP. Based on our experience working with the
States in other Federal Aid grant programs, we believe the partnership
and accountability benefits outweigh the administrative burdens
associated with the use of in-kind match.
Comment 14. We recommend that you establish a Tier 3 program * * *
that would address a multi-state concern with respect to at-risk
species * * * and we recommend a fund match of 90%/10% (Federal/State).
Response: Rather than creating a third tier for LIP to address
multistate projects, the Service will retain a two-tiered program
during this program implementation period and consider

[[Page 61645]]

evaluating other options in future years based on identified State
needs.
Comment 15. We received two comments that encouraged the Service to
focus proposal review and funding at the ``program'' level and not at
the activity or project level.
Response: Service review of grant proposals will be primarily at
the program level to determine how well the States address the
eligibility requirements for Tier-1 and the criteria for the
competitive scoring process in Tier-2. In addition, we will evaluate
and score the State Tier-2 grant proposals based upon the level of
detail provided, which may focus on projects. Once funds are awarded to
a State, however, the Service will need to evaluate projects to see
that they meet Federal environmental compliance requirements.
Comment 16. We suggest that the proposal selection process make use
of the ``diverse panel of interested and affected parties'' proposed
for the Private Stewardship Grant Program.
Response: The Service intends to create a diverse panel of
professional Service staff to review, rank, and recommend funding to
the Director. They will be knowledgeable about the LIP program, its
objectives, and implementation requirements as well as how other
Federal grant programs are implemented. The Service's expectation is
that the panel will perform in a fair, efficient, and effective manner.
Comment 17. We wish that the program had chosen to allocate funds
based on need and opportunity, rather than a set finite limit of $1.74
million [5% maximum for each State] regardless of opportunity.
Response: The Service proposed limits to ensure opportunities to
all States during this important initial phase of program building.
Since needs and opportunities vary from State to State based upon many
factors, the Service believes that it is important this first year to
encourage national program development and acceptance in as many States
as practical. We believe the 5% maximum per State will lead to a
greater number of species and habitats positively impacted, but will
revisit the cap issue in subsequent years should it appear to be
constraining.
Comment 18. At the very least, the outreach and fund distribution
system are likely to be the same for every Tier-2 grant submitted by
each State, so it would be better to have these aspects described in a
cover letter to the Tier-2 grant package that each State submits.
Response: It is difficult to determine at this time what the States
will submit regarding their plans for outreach and fund distribution.
We believe these are important factors involved with the development of
a strong program. The States will need to describe clearly how they
intend to meet this eligibility requirement for Tier-1 and scoring
criterion for Tier-2 grants in their grant proposal document.
Comment 19. It is unclear whether a State's proposal can include
more than one discrete project, each with its own requested funding
level.
Response: The purpose of the LIP is to help establish or support
State programs that provide, enhance or conserve habitats for at risk
species. States may submit one or more projects within their grant
proposal. Additionally, one or more grant agreement segments may be
used to implement and obligate funds for projects within a grant
proposal. See also the Response to Comment 15.
Comment 20. We are concerned that it will be difficult to submit
proposals, receive funding, and initiate projects in the short time
remaining this Federal fiscal year.
Response: No relationship exists between LIP fund initiation and
expenditure and the Federal fiscal year. The only initial deadline to
meet is the deadline for submission of proposals. Once proposals are
received, approved, and ranked, the Director will announce grant awards
to the States. The obligation of funds for States awarded grants takes
place when the Service approves a grant agreement. One or more projects
may then be initiated, but there is no specific deadline by which work
must begin or end other than that described in the grant agreement.
Comment 21. We believe it is too late in the fiscal year to solicit
proposals and allocate funds. We believe that efficiency and
effectiveness would be greatly enhanced * * * if the FY 02 funds were
rolled over and combined with FY 03 funds, with a single proposal
solicitation used for the combined funds.
Response: Many program commenters and supporters have expressed
their desire to see the program implemented quickly. In addition, it is
possible that no funds will be appropriated by Congress in FY 2003 or
funds may be appropriated with additional or differing requirements.
For these reasons, it is important to proceed with implementation of
LIP for FY 2002 at this time.
Comment 22. The short timeframe for this program will require a
simplified application procedure to allow State agencies time to
develop a timely and complete application.
Response: The application procedure is limited to filling out a
one-page Application for Federal Assistance form and a narrative
describing the key components of the proposal as outlined in these LIP
Final Implementation Guidelines. The proposed 60-day period we are
allowing for submission of grants seems acceptable to most States.
Comment 23. The Federal Register notice states that the Service
will ensure that the funded State projects will comply with the NEPA.
This compliance should be addressed through a categorical exclusion or
the development of a generic environmental analysis finding that
precludes the need for a detailed Environmental Assessment (EA) or
Environmental Impact Statement (EIS).
Response: A generic nationwide EA or EIS is not possible at this
time due to the anticipated variability in the grant proposals
submitted by each State. The Service must review each grant agreement
developed by the States for NEPA compliance. We would apply categorical
exclusions where warranted.
Comment 24. We strongly recommend that the Service monitor this
program and ensure that it does not become bogged down in bureaucratic
red tape and overhead.
Response: The Service will administer the LIP program in a manner
that will move grants quickly through the administrative process and
provide efficient reimbursement processing and project monitoring.
Regional Service contacts will work closely with the States, and their
partner landowners and organizations as needed, to achieve on-the-
ground results.

Comments Related to the Scoring Process and Ranking Criteria

Comment 25. Tier-2 ranking criterion 12(a) regarding detail and
clarity * * * likely will not contribute significantly to
discriminating the value of competing proposals.
Response: The Service believes it is important for proposals to be
well written and clearly describe what the State or territory intends
to accomplish with a grant. This is an important part of the evaluation
process.
Comment 26. Question 24 [of the first LIP notice] addresses the
issue of length of time during which the project improvements are to be
left in place in order to realize the desired benefits. We recommend
adding this to the Tier-2 grant proposal ranking criteria in answer to
Question 12.
Response: We have added an additional ranking criterion (h) (in the
answer to Question 12), that focuses on the anticipated length of
project

[[Page 61646]]

benefits, as well as the urgency of the proposed projects.
Comment 27. In regard to Tier-2 ranking criterion 12(b) on fiscal
management systems, we do not believe that ranking proposals using this
criterion will enhance the program or help insure that the proposals
that contribute most to conservation of at-risk species will be
selected.
Response: Fiscal management and related systems used by agencies
receiving Federal funds and the required accounting for their use are
critical to meeting accountability expectations and implementing an
effective program administratively.
Comment 28. Question 12(b) includes as a Tier-2 grant proposal
ranking criterion ``* * * annual monitoring and evaluation of progress
toward desired project and program objectives (landowner and State).''
We suggest alternate wording, ``* * * desired project objectives
[deleting ``and program''].'' Particularly when funding for the program
must be authorized annually, it seems that LIP objectives would be met
if project objectives are monitored and evaluated.
Response: We disagree. Since LIP is really focused primarily on
establishing and funding programs, the proper barometer is at the
programmatic level which synthesizes project level results. States will
undoubtedly need to conduct monitoring and evaluation at the project
level to determine progress toward program goals and objectives.
Therefore, we have changes in the LIP Final Implementation Guidelines
to reflect the emphasis on program level focus.
Comment 29. I believe that these two criteria (public awareness/
outreach 12(d) and fund distribution 12(c)) are more valuable for a
Tier-1, LIP setup grant than for each individual Tier-2 grant that you
will be evaluating. At the very least they are likely to be the same
for every Tier-2 grant submitted by each State so it would be better to
have these aspects described in the cover letter to the Tier-2 grant
package that each State submits.
Response: The Service believes there could be a high degree of
variability in what States propose for their outreach efforts ((d) in
answer to Question 12). We also recognize the importance public
outreach can have in developing an effective program with good
landowner participation. The Service believes outreach provides a
legitimate area of focus for Tier-1 and as a ranking criterion for
Tier-2. We also believe that fund distribution is an important aspect
of the program and should be a ranking criterion.
Comment 30. It's unclear if a state wildlife agency will be
required to describe cost/benefit components or if this reference is
used merely as an example. The benefits of habitat conservation are
many, but often extremely difficult to quantify. We suggest the portion
of 12(c) * * * cost/benefit components including duration of costs and
benefits be removed from the list of scoring criteria for Tier-2
grants.
Response: Cost/benefit analysis is only one of many ways that a
State may wish to establish, singly or in combination with other
criteria, a fair and equitable system for fund distribution. The
Service will retain this suggested criteria as a potential option to
the States in the answer to Question 12(c).
Comment 31. Two comments suggested that the Tier-2 ranking
criterion 12(g) regarding matching nonfederal funds was rarely an
important factor in program success and had built-in bias against
States not capable of increasing their nonfederal matching funds. They
suggest that it should either be eliminated or reduced in its
allocation of scoring points. Another comment was made suggesting an
alternate [to using matching funds as a ranking criterion] would be to
award more points to those proposals with a higher number of State,
Federal, or private partners.
Response: The Service grant programs serve as vehicles for States
and other entities to accomplish conservation and management activities
that would otherwise not have funding. Encouraging the leveraging of
Federal dollars has served as an important tool in bringing partners
together and developing support for these activities. We believe those
States maximizing this effort should be recognized to some degree in
the ranking process. Nonetheless we have reduced the total number of
points that can be scored in this category to acknowledge the challenge
confronted by some agencies.
Comment 32. We recommend Tier-2 ranking criterion 12(e) be modified
to consider the proportion of at-risk species within the State,
territory, or district [that is to be addressed by the grant proposal].
Response: To consider this modification, it would require each
State to develop a complete list of all species they deem to be at-risk
within their jurisdiction prior to applying for any grant. We believe
that this requirement would likely result in a long deliberative
process, with large variability among States, with minimal benefit to
the program.
Comment 33. A [new] ranking criterion for Tier-2 grants should
consider the urgency of the project to the target species. We encourage
scoring criterion 12(e) for Tier-2 grants be modified to represent more
a measure of the overall contributions of the project to conservation
of the species benefitted.
Response: We have created an additional ranking criterion 12(h) to
address the urgency and duration of benefits for species identified in
the proposed projects.
Comment 34. Individual projects in Hawaii and California are very
likely to benefit over a dozen listed species * * * [thus restructuring
the scoring for Tier-2 criterion (e)] would be more useful if it was 1-
4 species (1 point), 5-10 species (2 points), and 10 species
(3 points). And, reduce the total points possible for all criteria.
Response: We believe a large number of total points possible will
enable reviewers to more accurately discern true differences between
grossly similar grant proposals. We also believe the number of species
benefitted is a valid scoring criterion. We have, however, added
another species-related ranking criterion (h) that will expand the
scoring to also include the urgency of the project to the species
benefitted.
Comment 35. Tier-2 ranking criterion 12(e) should be expanded to
include the relative conservation risk of the species identified in the
application.
Response: As stated previously in the response to Comment 34, we
have created an additional ranking criterion 12(h) to address the
urgency and duration of benefits for species identified in the proposed
projects.
Comment 36. More qualitative flexibility to allow consideration of
this broader State context (relative to administration) needs to be
incorporated into ranking criterion 12(f) for Tier-2.
Response: We have reduced the weighting of this criterion due to
this comment and others that indicate a need to consider the variation
in current capabilities of some State agencies to address their
administrative needs.
Comment 37. We suggest that this criterion (12(f)) be amended to
consider the percentage of the State's total Tier-2 program funds
rather than the percentage of the State's total LIP program funds
(which we assume would include the combined funds from Tier-1 and Tier-
2 grants).
Response: We agree this is not clear and have made the suggested
changes to ranking criterion 12(f) in this final notice.

[[Page 61647]]

Comment 38. We feel the scoring criterion 12 (f) (for Tier-2
grants) unfairly benefits those State wildlife agencies with the
greatest capacity to deliver private lands programs. We recommend it be
removed or its scoring weight reduced by at least 50%.
Response: Based on this and related comments we have reduced the
weighting of this criterion from 10 possible points to five.
Comment 39. Comments on Tier-2 scoring criterion 12 (h) [of the
first LIP notice], regarding proposals identifying performance measures
that support the Service performance goals, ranged from replacing this
scoring criterion with one that focuses on specific species
reproductive improvements, to deleting the criterion entirely.
Response: President Bush has launched a new strategy for improving
the management and performance of the Federal Government. The
quantified measures to be included with each proposal to be eligible
under LIP will help achieve the overall program goal to conserve
habitat for endangered, threatened or other at risk species on private
lands. Through LIP, State programs to assist private, voluntary
conservation efforts will help the Service meet its Long-Term and
Annual Performance Goals as expressed in the Service's Annual
Performance Plan. The LIP furthers the Service's goals for conserving
imperiled species (Goal 1.2) and habitat conservation (Goal 2.3).
Further information on the Service's strategic plans and performance
reports is available at http://planning.fws.gov.
The Service believes that there is merit in evaluating LIP projects
and how grants assist meeting LIP and Service goals. Rather than
including performance measures in the ranking criteria, however, we are
requiring the State to:
(a) for Tier-1 grant proposals--Describe the process by which the
State will develop clear, obtainable, and quantified performance
measures to help it meet LIP program goals and objectives; and
(b) for Tier-2 grant proposals--Identify clear, obtainable, and
quantified performance measures related to the Habitat Conservation and
Sustainability of Fish and Wildlife Populations goals in the expected
results or benefits section of the grant proposal narrative.
Additionally, we have modified selection criteria 12(b) to require
States to identify how their management systems will adequately monitor
and evaluate progress in achieving its goals through these performance
measures.
Comment 40. The only comments concerning the Tier-1 eligibility
requirements recommended eliminating criterion (g) that would identify
performance measures that support Service performance goals.
Response: See the response to Comment 39.
Comment 41. One commenter preferred reducing the total points for
all scoring criteria.
Response: We have reduced total points for some ranking criteria
where comments supported that reduction.
Comment 42. One commenter suggested a general or ``other proposal
merits'' scoring criterion that would include how the project might
complement other projects in the area, its unique qualities, enhanced
nonfederal cost sharing, or other extraordinary benefits.
Response: We found it difficult to create a multifaceted ranking
criterion, unlike those that have more specific and measurable
components, and therefore have not included one in the Implementation
Guidelines.
Comment 43. A criterion for Tier-2 ranking should include the
magnitude and duration of benefits.
Response: Ranking criteria (a) and (h) (see answer to Question 12)
should adequately capture the magnitude and duration of benefits of the
projects.

Required Determinations

Regulatory Planning and Review

This policy document identifies eligibility and selection criteria
the Service will use to award grants under LIP. The Service developed
these guidelines to ensure consistent and adequate evaluation of grant
proposals that are voluntarily submitted and to help perspective
applicants understand how the Service will award grants. According to
Executive Order (E.O.) 12866, these policy guidelines are significant
and the Office of Management and Budget has reviewed them in accordance
with the four criteria discussed below.
(a) LIP will not have an annual effect on the economy of $100
million or more or adversely affect in a material way the economy, a
sector of the economy, productivity, jobs, the environment, public
health or safety, or State or local communities. A total of $34,800,000
will be awarded in grants to State and Territorial wildlife agencies to
provide financial and technical assistance to private landowners to
carry out voluntary conservation actions. These funds will be used to
pay for the administration and execution of actions such as restoring
natural hydrology to streams or wetlands that support species of
concern, fencing to exclude livestock from sensitive habitats, or
planting native vegetation to restore degraded habitat. In addition,
grants that are funded will generate other, secondary benefits,
including benefits to natural systems (e.g., air, water) and local
economies. All of these benefits are widely distributed and are not
likely to be economically significant in any single location. It is
likely that some residents where projects are initiated will experience
some level of benefit, but quantifying these effects at this time is
not possible. We do not expect the sum of all the benefits from this
program, however, to have an annual effect on the economy of $100
million or more.
(b) We do not believe LIP would create inconsistencies with other
agencies' actions. Congress has given the Service the responsibility to
administer the program.
(c) As a new grant program, LIP would not materially alter the
budgetary impact of entitlements, user fees, loan programs, or the
rights and obligations of their recipients. This policy establishes a
new grant program that Public Law 107-63 authorizes, which should make
greater resources available to applicants. The submission of grant
proposals is completely voluntary, but necessary to receive benefits.
When an applicant decides to submit a grant proposal, the eligibility
and selection criteria identified in this policy can be construed as
requirements placed on the awarding of the grants. Additionally, we
will place further requirements on grantees that are selected to
receive funding under LIP in order to obtain and retain the benefit
they are seeking. These requirements include specific Federal financial
management and reporting requirements and time commitments for
maintaining habitat improvements or other activities described in the
applicant's grant proposal.
(d) OMB had determined that these guidelines raise novel legal or
policy issues, and, as a result, this document has undergone OMB
review.

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

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small

[[Page 61648]]

entities (i.e., small businesses, small organizations, and small
government jurisdictions). No regulatory flexibility analysis is
required, however, if the head of the agency certifies the rule will
not have a significant economic impact on a substantial number of small
entities. SBREFA amended the Regulatory Flexibility Act to require
Federal agencies to provide a statement of the factual basis for
certifying that a rule will not have a significant economic impact on a
substantial number of small entities. SBREFA also amended the RFA to
require a certification statement. In this notice, we are certifying
that LIP will not have a significant economic impact on a substantial
number of small entities for the reasons described below.
Small entities include organizations, such as independent nonprofit
organizations and local governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents, as well as small businesses. Small businesses include
manufacturing and mining concerns with fewer than 500 employees,
wholesale trade entities with fewer than 100 employees, retail and
service businesses with less than $5 million in annual sales, general
and heavy construction businesses with less than $27.5 million in
annual business, special trade contractors doing less than $11.5
million in annual business, and agricultural businesses with annual
sales less than $750,000. To determine if potential economic impacts to
these small entities are significant, we consider the types of
activities that might trigger impacts as a result of this program. In
general, the term significant economic impact is meant to apply to a
typical small business firm's business operations.
The types of effects this program could have on small entities
include economic benefits resulting from the purchasing of supplies or
labor to implement the grant proposals in relation to habitat
improvements on private lands. By law, only State and Territorial
wildlife agencies are eligible grant recipients. Since this program
will be awarding a total of only $34,800,000 for grants throughout the
United States to benefit wildlife habitat on private lands, a
substantial number of small entities are unlikely to be affected. The
benefits from this program will be spread over such a large area that
it is unlikely that any significant benefits will accrue to a
significant number of entities in any area. In total, the distribution
of the $34,800,000 will not create a significant economic benefit for
small entities but, clearly a number of entities will receive some
benefit.

Unfunded Mandates Reform Act

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
(a) This policy will not ``significantly or uniquely'' affect small
government entities.
(b) This policy will not produce a Federal mandate of $100 million
or greater in any year; that is, it is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act. LIP establishes a
grant program that States may participate in voluntarily.

Takings

In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), LIP does not have significant takings implications. State
and Territorial agencies will work with private landowners who
voluntarily request technical and financial assistance for species
conservation on their lands.

Executive Order 13211

On May 18, 2001, the President issued an Executive Order (E.O.
13211) on regulations that significantly affect energy supply,
distribution, and use. Executive Order 13211 requires agencies to
prepare Statements of Energy Effects when undertaking certain actions.
This policy is not expected to significantly affect energy supplies,
distribution, or use. Therefore, this action is not a significant
energy action and no Statement of Energy Effects is required.

Federalism

In accordance with Executive Order 13132, this policy does not have
any Federalism effects. A Federalism assessment is not required.
Congress has directed that we administer grants under LIP directly to
the States and Territories. The States have the authority to decide
which private landowner projects to forward to the Service for
consideration as their LIP.

Civil Justice Reform

In accordance with Executive Order 12988, LIP does not unduly
burden the judicial system and does meet the requirements of sections
3(a) and 3(b)(2) of the Order. With the guidance in this policy and
these guidelines, the Service will clarify the requirements of LIP to
applicants that voluntarily submit grant proposals.

National Environmental Policy Act

The issuance of this policy and implementation guidelines does not
constitute a major Federal action significantly affecting the quality
of the human environment. The Service has determined that the issuance
of the policy and guidelines is categorically excluded under the
Department of the Interior's NEPA procedures in 516 DM 2, Appendix 1
and 516 DM 6, Appendix 1. The Service will ensure that grants that are
funded through LIP are in compliance with NEPA.

Government-to-Government Relationship With Tribes

In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations With Native American Tribal
Governments'' (59 FR 22951), E.O. 13175, and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with federally recognized
Tribes on a government-to-government basis.
This policy document deals only with the LIP program as it relates
to States and Territories. Under Public Law 107-63, Title I, Tribes are
also eligible grantees. The Service is preparing a separate policy
document which will be applicable to the tribal component of the LIP
program.

Paperwork Reduction Act

We made application to OMB for approval of the information
collection requirements for this program in conjunction with the above
Federal Register notice published June 7, 2002. That application seeks
to revise the Federal Grants Application Booklet (1018-0109) to include
additional hours for this new burden. OMB approved this request August
12, 2002. An agency may not conduct or sponsor, and a person is not
required to respond to, a collection of information unless it displays
a currently valid OMB control number.

Authority

This notice is published under the authority of the Department of
the Interior and Related Agencies Appropriations Act, 2002, H.R. 2217/
Pub. L. 107-63.

Dated: August 15, 2002.
David P. Smith,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 02-24859 Filed 9-30-02; 8:45 am]
BILLING CODE 4310-55-P

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A02-24859. Public record. Not legal advice.