[Federal Register Volume 62, Number 9 (Tuesday, January 14, 1997)]
[Rules and Regulations]
[Pages 1838-1844]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-884]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 36
RIN 1018-AC02
Visitor Service Authorizations on Alaska National Wildlife
Refuges
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: The Fish and Wildlife Service (Service) adopts regulations to
implement Section 1307 of the Alaska National Interest Lands
Conservation Act of 1980 (ANILCA). This action is necessary to
establish the procedures for granting historical use, Native
Corporation, and local preferences in the selection of commercial
operators who provide visitor services other than hunting and fishing
guiding on National Wildlife Refuge System lands in Alaska. This
rulemaking provides guidance in the solicitation, award and renewal of
competitively offered visitor service authorizations on National
Wildlife Refuges in Alaska.
DATES: This rule is effective February 13, 1997.
ADDRESSES: Regional Director, Alaska Region, U.S. Fish and Wildlife
Service, 1011 E. Tudor Road, Anchorage, Alaska 99503.
FOR FURTHER INFORMATION CONTACT: David G. Patterson, Regional Public
Use Specialist, U.S. Fish and Wildlife Service, 1011 E. Tudor Road,
Anchorage, Alaska 99503; Telephone (907) 786-3389.
SUPPLEMENTARY INFORMATION:
Background
The ANILCA (16 U.S.C. 3101 et seq.) was signed into law on December
2, 1980. Its broad purpose is to provide for the disposition and use of
a variety of federally owned lands in Alaska. Section 1307 of ANILCA
(16 U.S.C. 3197) contains two provisions concerning persons and
entities who are to be given special rights and preferences with
respect to providing ``visitor services'' in certain lands under the
administration of the Secretary of the Interior, in this context, units
of the National Wildlife Refuge System. The term ``visitor service'' is
defined in section 1307 as ``* * * any service made available for a fee
or charge to persons who visit a conservation system unit, including
such services as providing food, accommodations, transportation, tours,
and guides excepting the guiding of sport hunting and fishing.''
Subsection (a) of Section 1307 states as follows: Notwithstanding
any other provision of law, the Secretary [of the Interior], under such
terms and conditions as he determines are reasonable, shall permit any
persons who, on or before January 1, 1979, were engaged in adequately
providing any type of visitor service [as defined in subsection (c)]
within any area established as or added to a conservation system unit
to continue providing such type of service and similar types of visitor
services within such area if such service or services are consistent
with the purposes for which such unit is established or expanded (16
U.S.C. 3197).
Subsection (b) of Section 1307 states as follows: Notwithstanding
provisions of law other than those contained in subsection (a), in
selecting persons to provide (and in the contracting of) any type of
visitor service for any conservation system unit, except sport fishing
and hunting guiding activities, the Secretary [of the Interior]--
(1) shall give preference to the Native Corporation which the
Secretary determines is most directly affected by the establishment or
expansion of such unit by or under the provisions of this Act; and
(2) shall give preference to persons whom he determines, by rule,
are local residents * * * (16 U.S.C. 3197).
Subsection (b) also provides to Cook Inlet Region, Incorporated
(CIRI), in cooperation with Village Corporations within the Cook Inlet
Region when appropriate, the right of first refusal to provide new
visitor services within the Kenai National Moose Range, (Kenai National
Wildlife Refuge), within the Cook Inlet Region.
The Alaska National Wildlife Refuge System is managed by the U.S.
Fish and Wildlife Service under the National Wildlife Refuge System
Administration Act (16 U.S.C. 668dd-668ee), Refuge Recreation Act (16
U.S.C. 460k-4), and the Alaska National Interest Lands Conservation Act
(ANILCA) (84 Stat. 2371 et seq.; codified as amended in scattered
sections of 16 U.S.C., 43 U.S.C., 48 U.S.C.).
[[Page 1839]]
The Secretary of the Interior is authorized under the National
Wildlife Refuge System Administration Act to provide for visitor
services within the refuge system which he determines are compatible
with the purposes for which the area was established as a refuge (16
U.S.C. 668dd(b)(1)). In accordance with that authority, provision is
made in the Fish and Wildlife Service refuge regulations for operation
of public use facilities and services on national wildlife refuges by
concessionaires or cooperators under appropriate contracts or legal
agreements (50 CFR 25.61). This rule provides the procedures for
selecting the providers of services and facilities, excluding sport
fishing and hunting guiding activities, to the public on national
wildlife refuges in Alaska under section 1307 of ANILCA. These
procedures apply only when a visitor services permit must be issued
competitively.
Summary of Public Involvement
For the convenience of the public and to enhance the public
involvement process, the National Park Service and the U.S. Fish and
Wildlife Service agreed to publish simultaneously the draft regulations
implementing section 1307 of ANILCA and to undertake a joint public
involvement effort. The public comment period was open from April 25 to
June 26, 1995, and then, in response to numerous requests, reopened
from July 13 to September 11, 1995. The Fish and Wildlife Service
conducted public meetings jointly with the National Park Service in
Anchorage and Fairbanks. The meetings were mostly informational with
one official statement presented by a Native Corporation. National
Wildlife Refuge field offices made individual contacts, conducted
informational public meetings, and held open houses.
The Fish and Wildlife Service received written comments from 28
different groups or individuals. Eight of those commenters addressed
Fish and Wildlife Service issues specifically, while 20 of the
commenters addressed issues of both agencies. The National Park Service
received an additional 28 written comments from groups or individuals
addressing specific park issues. All written comments received by one
agency were shared with the other agency in the event a response
addressed both agencies. Of the 28 written comments received by the
Fish and Wildlife Service, 11 were from Alaska Native organizations,
eight from visitor service providers, three from individuals, two from
non-tourism related businesses, two from special interest groups, one
from federal government, and one from state government. The following
analysis applies only to those 28 comments affecting national wildlife
refuges. The comments are discussed on a section by section basis.
Analysis of Public Comments
Comments touched on a wide range of topics. A significant number of
comments addressed the statute (ANILCA) rather than the regulations, or
offered opinions reflecting personal choices rather than identifying
problems or potential improvements, or example, ``preferences are not
fair'' or ``are not appropriate.'' Also significant was the number of
commenters stating that the regulations discriminate against Natives or
Native entities. On the other hand a significant number of commenters
stated that the regulations give Natives an unfair advantage in
providing visitor services. The view was raised by several persons that
giving preferences does not always allow the selection of the best
qualified provider or the safest service, and that preferences
discourage non-preferred providers from submitting bids.
One commenter requested that subsistence use of refuges be
specifically protected. Title 8 of ANILCA provides that protection does
not need to be addressed in these regulations. The same commenter
stated that the local Native Corporation should be given a right of
first refusal for any visitor service provided in that refuge. Section
1307 of ANILCA does not provide for that right. Paragraph (b) does
require the Secretary of the Interior to ``(1) * * * give preference to
the Native Corporation which the Secretary determines is most directly
affected by the establishment or expansion of such unit by or under the
provisions of this Act).''
In the draft regulations the terms ``new visitor services'' and
``future visitor services'' were used interchangeably. Regulations
implementing section 1307 of ANILCA apply to all new visitor services,
except hunting and fishing guiding, offered by a competitive bidding
process on all national wildlife refuges in Alaska. The term ``new
visitor services'' is used consistently throughout the final
regulations.
Section 36.37(b) Definitions
The definition of ``adequate services'' was subjective and lacked
standards, according to some commenters. The term was not used in the
text of the draft regulations as published in the Federal Register; it
has been deleted from the list of definitions.
Numerous commenters felt that the definitions for ``controlling
interest'' and ``historical operator'' should include family members
and partners in those situations where a refuge permit holder providing
a visitor service is no longer able to provide the service because of
death or illness. The policy of the Service in Alaska is that refuge
permits will carry a right-of-survivorship during the term of the
permit. If an individual permittee dies or becomes physically or
mentally incapacitated, the permit will automatically pass to a
qualified spouse, immediate family member, or prior existing business
partner. This policy is not limited to permits issued pursuant to these
regulations.
A diversity of commenters were concerned about the definition of
``local area'' and identified two predominant issues: (1) the size of a
community should have no bearing on whether it is local; and (2)
because of the relationship of the people to the land, a distance of 35
miles from the refuge boundary could exclude communities from visitor
service areas which impact them directly, while at the same time
include communities that have no socio-economic ties to the location
where a visitor service would be offered. Regarding the first issue,
the Service agrees that ``local'' should be determined by proximity,
not size. The requirement that a community have a population of 5,000
or fewer persons in order to be considered local has been deleted from
the final regulation. Regarding the second issue, different suggestions
were offered. The large size of many of the refuges causes the external
boundary to be an inadequate reference point when determining ``local
area.'' In response to the numerous comments the Service reevaluated
the issue and concluded that ``local area'' should be defined using the
location of the visitor service as the reference point. The final
regulation defines ``local area'' as follows: ``Local area means that
area in Alaska within 100 miles of the location within a refuge where
any of the visitor service is authorized.''
Likewise a significant portion of the comments addressed the
definition of ``local resident,'' both for individuals and for
corporations. Numerous opinions were offered, the most common being
that any resident of the State of Alaska should be considered local.
More of the comments related to corporations than to individuals. A
sample of the comments include: ``corporations should be treated the
same as an individual;'' ``Native Corporations should be allowed to
form
[[Page 1840]]
joint ventures with non-preferred providers;'' ``a Native Corporation
should be considered local within its regional corporation boundary;''
``a corporation should be considered local if the majority of the
shareholders are local;'' ``if the majority of stockholders of a
corporation are local, there should be no requirement for the
corporation to be headquartered locally;'' and, ``a corporation should
not be considered as having changed because of a change in the
stockholder roster.''
The purpose of paragraphs (b)(1) and (b)(2) of section 1307 of
ANILCA was to provide assurance that the designation of the wildlife
refuges would not negate economic opportunity for the persons and
businesses located within the vicinity of those refuges, and who have
direct socio-economic ties to the resources within the refuges. ANILCA
acknowledges the probability that some Native Corporations having
direct socio-economic ties to a refuge may not be considered local by
definition. Identification of the ``most directly affected Native
Corporation'' was to protect the economic interests of those Native
Corporations in existence at the time of the passage of ANILCA, and
that had social or economic ties to a particular refuge. Designation of
``most directly affected Native Corporation'' provides a preference to
those Native Corporations. A local preference and a most directly
affected Native Corporation preference are equal in value and are not
additive. A Native Corporation that is eligible for a local preference
receives no additional preference by requesting designation as most
directly affected Native Corporation.
After reviewing the draft regulations in light of the comments
received, the Service agreed that the treatment of corporations in the
definition of local resident was not equitable to the treatment
received by individuals. The definition for local resident has been
rewritten so that location of the headquarters is not a factor in
determining ``local corporation.'' Paragraph 36.37(b)(4)(ii) now reads
as follows: ``For corporations. A corporation in which the controlling
interest is held by an individual or individuals who qualify as `local
resident(s)' within the meaning of this section. For non-profit
corporations a majority of the board members and a majority of the
officers must qualify as `local residents.' ''
Some commenters expressed concern that non-local persons could move
to a community immediately prior to submitting an offer to provide a
visitor service and thereby receive a local preference. Other
commenters expressed concern that a business located outside the local
area could arrange to have a local resident submit an offer on its
behalf and thereby receive a local preference. Both these scenarios
appeared to be contrary to the spirit of ANILCA. Responding to those
concerns the Service has further altered the definition of ``local
resident'' to include a requirement that individuals ``* * * have
maintained a primary, permanent residence and business within the local
area for the past twelve consecutive months * * * .''
Although not in response to a specific comment, the Service added a
definition for ``a responsive offer'' to help clarify the process used
to identify preferred operators.
Section 36.37(c) Visitor Services Existing On or Before January 1,
1979, ``historical operators''
Several comments reflected confusion regarding the ability of a
historical operator to increase the scope and level of visitor services
pursuant to section 1307. Paragraph (c)(1) states that a historical
operator may be permitted by the Refuge Manager to increase the scope
or level of visitor services provided prior to January 1, 1979, but
under separate authority. No historical operating rights shall be
obtained in such increase. Paragraph (c)(2) states that a historical
operator may apply for a permit or amended permit to provide similar
visitor services pursuant to section 1307. For clarification the
following sentence has been relocated within the paragraph: ``Granting
the request will not result in an increase in the scope or level of
service in excess of those provided by the requesting historical
operator as of January 1, 1979.''
Concerns were expressed by several commenters that the time allowed
for non-delivery of visitor services in paragraph (c)(4) of the draft
regulations was not adequate to provide for certain legitimate
circumstances. After reviewing the comments the Service agreed that
eleven (11) months was not an appropriate time period to allow for non-
delivery of services. The time frame has been increased to twenty-four
(24) months and is reflected in paragraph (c)(5) of the final
regulations. Twenty-four (24) months accommodates a situation in which
a visitor service provider may only have a one month season. If that
provider is unable to offer the service the following season for
reasons beyond his control, he would then be twenty-three (23) months
without providing the visitor service.
Section 36.37(d) Visitor Services Initially Authorized After January
1, 1979, ``preferred operators''
Many of the comments reflected confusion regarding the relationship
between local preference and preference for most directly affected
Native Corporation. The following sentence has been added to paragraph
(d)(1) for clarity: ``Preferences for most directly affected Native
Corporation(s) and local residents are equal and are not additive.''
Numerous commenters, especially those attending the public meetings
in Anchorage and Fairbanks, demonstrated concern and confusion
regarding the use of the terms ``best offer'' and ``meeting the terms
of the best offer.'' To many people the term ``best offer'' implies a
monetary bid. When the Service issues a prospectus, bidders are
required to describe in detail the service they would be providing. As
an example, this description might include types of equipment, means of
transportation, personnel qualifications, safety measures, methods of
communication, length of time required, and other aspects of service
delivery specified in the prospectus. The bid, or response to the
prospectus, constitutes an ``offer'' and is evaluated by a panel. After
reviewing the comments, the Service recognizes that ``meeting the terms
of the best offer'' would be difficult to evaluate and could lead to
unfair comparisons. The term in the final regulations has been changed
as suggested from ``meeting the terms of the best offer'' to
``substantially equal to the terms of the best offer.'' Also a
definition of ``best offer'' has been added to Sec. 36.37(b).
Several commenters expressed concern that Native Corporations were
not treated equitably by paragraph (d)(4) of the draft regulations
which required a Native Corporation to document total ownership of the
business entity making an offer in order to qualify for a preference. A
local corporation, however, only needed to document a controlling
interest in the business entity making an offer in order to qualify for
a preference. The paragraph has been changed so that both Native
Corporations and local corporations are required to document a
controlling interest in the entity making the offer. In the case of a
joint venture, corporations with a preference must document a
controlling interest in the joint venture.
[[Page 1841]]
Section 36.37(e) Preference to Cook Inlet Region, Incorporated (CIRI)
In response to a request by CIRI the comma was deleted before
``when appropriate'' in the first sentence of paragraph (e)(1) in order
to be consistent with the statutory language. The second sentence of
paragraph (e)(2) was more appropriately placed in subsection (b)
Definitions. Also in paragraph (e)(2) the draft regulations required an
offer to document total ownership by CIRI and/or the village
corporation in the entity making the offer. This wording has been
changed to require documentation of a controlling interest by CIRI
rather than a total ownership.
Section 36.37(f) Most Directly Affected Native Corporation
Determination
Many of the comments directed to this paragraph were addressed in
the comment section for paragraph 36.37(b) Definitions.
A few comments stated that ``most affected Native Corporation''
status should be determined by historical use. Section 1307 of ANILCA
provided a preference to help offset potential economic impacts caused
by the establishment of the refuges. Other sections of ANILCA provide
for continued subsistence and other traditional uses. Socio-economic
impacts are among the criteria identified in the regulations and are to
be used in the determination of ``most directly affected Native
Corporation.'' Historical use would be considered as it relates to
socio-economic impacts. Wording has been added to paragraph (f)(1)(iii)
to accommodate historical and traditional use.
One comment suggested that the criteria for determination of ``most
directly affected Native Corporation'' should include land ownership in
the vicinity of the refuge and not merely within or adjacent to the
refuge.
The Service has decided to maintain the wording as it appears in
the draft regulations. As stated earlier in the comment analysis,
section 1307 of ANILCA was intended to help offset potential economic
impacts caused by the establishment of the refuges. Providing a
preference to all individuals or corporations experiencing consequences
would defeat the intent of mitigating the impacts to those most
directly affected. In the case of Native Corporations, although more
than one may be determined most directly affected, the intent is to
provide a preference to those that are affected ``most directly.''
Native Corporations owning land within or adjoining a refuge boundary
certainly have greater potential to be impacted. The Service does not
believe it is appropriate to diminish the opportunity for preference
afforded those Native Corporations by expanding the criteria to include
additional Native Corporations. Neither does the Service believe it to
be appropriate to automatically provide a ``most directly affected''
preference to a Native Corporation based solely on its proximity to the
refuge boundary.
Although one Native Corporation comment requested automatic
preference for the Regional Corporation within whose boundary a visitor
service was being proposed, the Service believes that all Native
Corporation requests for preference should be reviewed equitably.
Paragraph (f)(3) of the draft regulations contained a sentence
allowing joint ventures between preferred operators. Several commenters
stated the concern that the wording was too limiting and that preferred
operators should be permitted to enter into joint ventures with non-
preferred businesses. Other commenters expressed concern that non-
Native, non-local businesses would use a preferenced corporation or
individual as a front to respond to a visitor service solicitation,
thereby receiving the preference. In evaluating these two perspectives
the Service concluded that the spirit of section 1307 of ANILCA could
easily be violated by providing for joint ventures between preferenced
and non-preferenced providers unless limits were placed on the manner
in which the joint venture could be structured. Forbidding joint
ventures between preferenced and non-preferenced providers, however,
may exceed appropriate limits. In order to accommodate the expressed
need for expanded opportunities to form joint ventures, the sentence in
paragraph (f)(3) limiting joint ventures has been deleted.
The subject of joint ventures has been addressed by rewriting
paragraph (d)(4) to read ``An offer from a Native Corporation or a
local corporation under this section must document its controlling
interest in the entity or, in the case of a joint venture, all partners
making the offer.'' Preferenced providers wishing to access the
experience and/or resources of non-preferenced providers are encouraged
to enter into alternative arrangements with those providers. Such
arrangements must result in the preferenced provider making the offer
and being responsible for the delivery of the visitor service, as well
as being accountable for the performance of the permit terms and
conditions. Contracting the services of the non-preferenced provider
would be an example of such an arrangement.
The draft regulations did not clearly state the intent to provide
multiple opportunities to apply for ``most directly affected Native
Corporation.'' This has been clarified by adding paragraph (f)(5) to
the regulations.
Section 36.37(g) Appeal Procedures
To maintain consistency of appeal procedures related to permits on
national wildlife refuges in Alaska, this section of the draft
regulations has been rewritten and adopts the procedures set forth in
50 CFR 36.41 Permits.
Paperwork Reduction Act
As required by the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), the Service has had an authorization number 1018-0014, from
the Office of Management and Budget (OMB) that has expired. The Service
has received an emergency extension through June 30, 1997, and is
likewise working on a long-term (three year), authorization request
which will be submitted before the emergency authorization expires.
This collection of information will be achieved through the use of
a USFWS Application Form, which will be modified pursuant to 50 CFR
13.12(b), to address the specific requirements of this final rule. The
information collection requirements needed for the proper use and
management of all Alaska National Wildlife Refuges is contained in 50
CFR 36.3. The information is being collected to assist the Service in
administering these recreation programs and, particularly, in the
issuance of permits and the granting of statutory or administrative
benefits.
This collection of information will establish whether the applicant
is fully qualified to receive the benefits of a refuge permit. The
information such as name, address, phone number, depth of experience,
qualifications, time in residence, knowledge of function, and
affiliations, requested in the application form is required to obtain a
benefit.
The likely respondents to this collection of information will be
individual Alaska citizens and local and native corporations who wish
to be considered to receive a refuge permit. This information will be
needed by the USFWS to determine whether a given individual or
corporation qualifies. A refuge permit will be approved for five (5)
years. Permits shall be noncompetively renewed by the refuge manager
for a period of five additional years upon showing permitee compliance
with all applicable permit terms and conditions, and a satisfactory
[[Page 1842]]
record of performance. The annual burden of reporting and record
keeping should be less than 40 hours per response, including the time
for reviewing instructions, searching existing data sources, gathering
and maintaining data needed, and completing and reviewing the
collection of information. The estimated number of likely respondents
is less than ten (10), yielding a total annual reporting and record
keeping burden of four hundred (400) hours or less.
Direct comments regarding the burden estimate or any other aspect
of the form to the Service Information Collection Clearance Officer,
Fish and Wildlife Service, Mail Stop 224, Arlington Square, U.S.
Department of the Interior, 1849 C Street, N.W., Washington, D.C.
20240, and to the Office of Information and Regulatory Affairs, OMB,
Attention: Desk Officer for the Interior Department (1018-0014),
Washington, D.C. 20503.
Economic Analysis
Service review has revealed that this rulemaking will establish the
procedures for granting historical use, Native Corporation, and local
preferences in the selection of commercial operators who provide
visitor services other than hunting and fishing guiding on National
Wildlife Refuge System lands in Alaska. This rule provides guidance in
the solicitation, award, and renewal of competitively offered visitor
service authorizations on refuges in Alaska. ANILCA provides assurance
that designation of the wildlife refuges would not negate economic
opportunity for the persons and businesses located within the vicinity
of those refuges, and who have direct socio-economic ties to the
resources within the refuges.
It is estimated that the need for new visitor services will result
in less than five (5) special use permits per year statewide. There is
a high probability that local visitor service providers, exercising
their right under section 1307(b) of ANILCA, would be awarded more
permits than companies without the preference. This preference will
have a positive impact on the local areas by increasing the economic
base of these communities. This impact, while important in relation to
the total economic level of the local area, is very small in actual
dollar value. It is anticipated that each of the projected new permits
issued annually will generate between $50,000 and $200,000 in revenue,
depending on the service provided. Therefore, this rule would have no
``significant'' economic impact on the local communities or local
governmental entities.
This rulemaking has been reviewed by the Office of Management and
Budget under Executive Order 12866. A review under the Regulatory
Flexibility Act of 1980 (5 U.S.C. 601 et seq.) has revealed that this
rulemaking would not have a significant effect on a substantial number
of small entities, which include businesses, organizations, or
governmental jurisdictions.
Unfunded Mandates
The Service has determined and certifies pursuant to the Unfunded
Mandates Act, 2 U.S.C. 1502 et seq., that this rulemaking will not
impose a cost of $100 million or more in any given year on local or
State governments or private entities.
Civil Justice Reform
The Department has determined that these final regulations meet the
applicable standards provided in Sections 3(a) and 3(b)(2) of Executive
Order 12988.
Environmental Considerations
In accordance with 516 DM 2, Appendix 1, the Service claims a
categorical exclusion to this rulemaking as this is pursuant to
``policies, directives, regulations and guidelines of an
administrative, financial, legal, technical or procedural nature,'' and
as this rulemaking establishes procedures to allow new and continuing
services on Alaska refuge units.
Primary Author
The primary author of this rule is David G. Patterson, Regional
Public Use Specialist, Fish and Wildlife Service, Alaska Region.
List of Subjects 50 CFR Part 36
Alaska, Recreation and recreation areas, Reporting and record
keeping requirements, and Wildlife refuges.
The U.S. Fish and Wildlife Service amends Part 36 of Chapter I of
Title 50 of the Code of Federal Regulations as follows:
PART 36--[AMENDED]
1. The authority citation for Part 36 continues to read as follows:
Authority: 16 U.S.C. 460k et seq., 668dd et seq., 742(a) et
seq., 3101 et seq., 44 U.S.C. 3501 et seq.
2. A new Section 36.37 is added to subpart D of part 36 to read as
follows:
Sec. 36.37 Revenue producing visitor services.
(a) Applicability.
(1) Except as otherwise provided for in this paragraph, the
regulations contained in this section apply to new visitor services
provided within all National Wildlife Refuge areas in Alaska.
(2) The rights granted by this section to historical operators,
preferred operators, and Cook Inlet Region, Incorporated, are not
exclusive. The Refuge Manager may authorize other persons to provide
visitor services on refuge lands. Nothing in this section shall require
the Refuge Manager to issue a visitor services permit if not otherwise
mandated by statute to do so. Nothing in this section shall authorize
the Refuge Manager to issue a visitor services permit to a person who
is not capable of carrying out its terms and conditions in a
satisfactory manner.
(3) This section does not apply to the guiding of sport hunting or
sport fishing.
(b) Definitions. The following definitions shall apply to this
section:
(1) Best Offer means a responsive offer that best meets, as
determined by the Refuge Manager, the selection criteria contained in a
competitive solicitation for a visitor services permit.
(2) Controlling interest, in the case of a corporation means an
interest, beneficial or otherwise, of sufficient outstanding voting
securities or capital of the business, so as to permit exercise of
final managerial authority over the actions and operations of the
corporation, or election of a majority of the Board of Directors of the
corporation.
(3) Controlling interest in the case of a partnership, limited
partnership, joint venture or individual entrepreneurship means a
beneficial ownership of or interest in the entity so as to permit the
exercise of final managerial authority over the actions and operations
of the entity.
(4) Controlling interest in other circumstances means any
arrangement under which a third party has the ability to exercise
general management authority over the actions or operations of the
business.
(5) Historical operator means any person who:
(i) On or before January 1, 1979, was lawfully engaged in
adequately providing any type of visitor service in a refuge within the
scope of paragraph (c) of this section;
(ii) Has continued to lawfully provide that visitor service; and
(iii) Is otherwise determined by the Refuge Manager to have a right
to continue to provide such services or similar services pursuant to
paragraph (c) of this section.
(6) Local area means that area in Alaska within 100 miles of the
location
[[Page 1843]]
within a refuge where any of the visitor service is authorized.
(7) Local resident means:
(i) For individuals. Those individuals that have maintained their
primary, permanent residence and business within the local area for the
past twelve (12) consecutive months and whenever absent from this
primary, permanent residence, have the intention of returning to it.
Factors demonstrating the location of an individual's primary,
permanent residence and business may include, but are not limited to,
the permanent address indicated on licenses issued by the State of
Alaska, tax returns, and voter registrations.
(ii) For corporations. A corporation in which the controlling
interest is held by an individual or individuals who qualify as ``local
resident(s)'' within the meaning of this section. For non-profit
corporations a majority of the board members and a majority of the
officers must qualify as ``local residents.''
(8) Native Corporation means the same as defined in section 102(6)
of ANILCA.
(9) Preferred operator means a local resident or Native Corporation
which is entitled to a preference under this section in the award of a
permit, and as otherwise provided under section 1307(b) of ANILCA.
(10) A responsive offer means one which is timely made and meets
the terms and conditions of the solicitation document.
(11) Similar visitor service means that visitor service authorized
by the Refuge Manager to be provided on a refuge and determined by the
Refuge Manager, on a case by case basis, to be similar to an
established service being provided by a historical operator.
(12) Visitor service means any service or activity made available
for a fee, commission, brokerage, or other compensation to persons who
visit a refuge, including such services as providing food,
accommodations, transportation, tours, and guides excepting the guiding
of sport hunting and fishing. This also includes any activity where one
participant/member or group of participants pays more in fees than the
other participants (non-member fees, etc.), or fees are paid to the
organization which are in excess of the bona fide expenses of the trip.
(13) Right of first refusal means, as it relates to section 1307(a)
of ANILCA, a reasonable opportunity for a historical operator to review
a description of the new similar service and the terms and conditions
upon which it is to be provided to determine if the historical visitor
service operator wishes to provide the service. As it relates to
section 1307(c) of ANILCA, it refers to the opportunity for Cook Inlet
Region, Incorporated to have the first opportunity to provide new
visitor services on the Kenai National Wildlife Refuge in the Cook
Inlet Region.
(c) Visitor services existing on or before January 1, 1979,
``historical operators''.
(1) A historical operator shall have a right to continue to provide
visitor services or similar services within such area, under
appropriate terms and conditions, so long as such services are
determined by the Refuge Manager to be consistent with the purposes for
which the refuge was established. A historical operator must obtain a
permit from the refuge manager to conduct the visitor services. The
permit shall be for a fixed term and specified area, and shall contain
such terms and conditions as are in the public interest. Failure to
comply with the terms and conditions of the permit may result in
cancellation of the authorization and consequent loss of historical
operator rights under this section. Nothing in this section shall
prohibit the Refuge Manager from permitting persons, in addition to
historical operators, to provide visitor services in the refuge at the
Refuge Manager's discretion so long as historical operators are
permitted to conduct a scope or level of visitor services equal to or
greater than those provided prior to January 1, 1979, under terms and
conditions consistent with this section. A historical operator may be
permitted by the Refuge Manager, under separate authority, to increase
the scope or level of visitor services provided prior to January 1,
1979, but no historical operating rights shall be obtained in such
increase.
(2) A historical operator may also apply to the Refuge Manager for
a permit or amended permit to provide similar types of visitor
services. Granting the request will not result in an increase in the
scope or level of service in excess of those provided as of January 1,
1979, by the requesting historical operator. The Refuge Manager shall
grant the request if such visitor services are determined by the Refuge
Manager to be:
(i) Consistent with the management of refuge resources and the
purposes for which the refuge area was established;
(ii) Similar to the visitor services provided by the historical
operator prior to January 1, 1979; and
(iii) Consistent with the legal rights of any other person.
(3) When a historical operator permit has expired, and if the
visitor services permitted by it were adequately provided and
consistent with the purposes of the refuge as determined by the Refuge
Manager, the Refuge Manager shall renew the permit for a fixed term
consistent with such new terms and conditions as are in the public
interest. Should a historical operator decline to accept an offer of
renewal, its rights as a historical operator shall be considered as
terminated.
(4) If the Refuge Manager determines that permitted visitor
services must be curtailed or reduced in scope or season to protect
refuge resources, or for other purposes, the Refuge Manager shall
require the historical operator to make such changes in visitor
services. If more than one historical operator providing the same type
of visitor services is required to have those services curtailed, the
Refuge Manager shall establish a proportionate reduction of visitor
services among all such historical operators, taking into account
historical operating levels and other appropriate factors, so as to
achieve a fair curtailment of visitor services among the historical
operators. If the level of visitor services must be so curtailed that
only one historical operator feasibly may continue to provide the
visitor services, the Refuge Manager shall select one historical
operator to continue to provide the curtailed visitor services through
a competitive selection process.
(5) The rights of a historical operator shall terminate if the
historical operator fails to provide the visitor services under the
terms and conditions of a permit issued by the Refuge Manager or fails
to provide the visitor services for a period of more than twenty four
(24) consecutive months.
(6) The rights of a historical operator under this section shall
terminate upon a change, after January 1, 1979, in the controlling
interest of the historical operator through sale, assignment, devise,
transfer or otherwise.
(7) The Refuge Manager may authorize other persons to provide
visitor services in a refuge in addition to historical operators, as
long as such other persons conduct the services in a manner compatible
with the purposes of the refuge.
(d) Visitor services initially authorized after January 1, 1979,
``preferred operators''.
(1) In selecting persons to provide, and in permitting any type of
visitor service, excepting guided hunting or fishing, the Refuge
Manager will give a preference to preferred operators determined
qualified to provide such visitor services. Preferences for most
directly affected Native Corporation(s) and local residents are equal
and are not additive.
[[Page 1844]]
(2) In selecting persons to provide any type of visitor service for
refuges subject to a preferred operator preference under this section,
the Refuge Manager will publicly solicit competitive offers for persons
to apply for a permit, or the renewal of a permit, to provide such
visitor service pursuant to Service procedures. Preferred operators
must submit a responsive offer to such solicitation in order to effect
their preference. If, as a result of the solicitation, an offer from a
person other than a preferred operator is determined to be the best
offer and that offeror is determined to be capable of carrying out the
terms of the permit, the preferred operator which submitted the most
responsive offer shall be given an opportunity to substantially equal
the best offer received by amending its offer. If the amended offer of
the preferred operator is considered by the Refuge Manager as being
substantially equal to the terms of the best offer, the preferred
operator, if determined to be capable of carrying out the terms of the
permit, shall be awarded the visitor service permit. If the preferred
operator fails to meet these requirements, the Refuge Manager shall
award the permit to the person who submitted the best offer in response
to the solicitation. The Native Corporation(s) determined to be ``most
directly affected'' under this section and local residents have equal
preference.
(3) Nothing in this section shall prohibit the Refuge Manager from
authorizing persons other than preferred operators to provide visitor
services in refuge areas so long as the procedures described in this
section have been followed with respect to preferred operators.
Preferred operators are not entitled by this section to provide all
visitor services in a qualified refuge.
(4) An offer from a Native Corporation or a local corporation under
this section must document its controlling interest in the entity or in
the case of a joint venture, all partners, making the offer.
(5) The preferences described in this section may not be sold,
assigned, transferred, or devised, directly or indirectly.
(e) Preference to Cook Inlet Region, Incorporated (CIRI).
(1) Cook Inlet Region, Incorporated, in cooperation with village
corporations within Cook Inlet Region when appropriate, shall have a
right of first refusal to provide new visitor services within that
portion of the Kenai National Moose Range (Kenai National Wildlife
Refuge) within the boundaries of Cook Inlet Region. The CIRI shall have
ninety (90) days from receipt of a prospectus in which to exercise its
right.
(2) In order to exercise this right of first refusal, CIRI must
submit an offer responsive to the terms of a visitor services
solicitation. If CIRI makes such an offer and is determined by the
Refuge Manager to be capable of carrying out the terms of the special
use permit, it shall be awarded the permit. If it does not, the permit
may be awarded to another person pursuant to a showing that such other
person can carry out the conditions of the special use permit in a
manner compatible with the purposes of the refuge. An offer being made
by CIRI under this section must document controlling interest by CIRI
when made in cooperation with village corporations within the Cook
Inlet Region. The CIRI right of first refusal shall have precedence
over the rights of preferred operators.
(3) The right of first refusal described in this section may not be
sold, transferred, devised, or assigned, directly or indirectly.
(f) Most directly affected Native Corporation determination.
(1) Prior to the issuance of a solicitation document for any new
visitor service in a refuge, the Refuge Manager shall provide an
opportunity for any Native Corporation interested in providing visitor
services within that refuge to submit an application to the Refuge
Manager to be determined ``most directly affected'' Native Corporation.
The application shall include but not be limited to, the following
information:
(i) The name, address, and telephone number of the Native
Corporation, the date of incorporation, its articles of incorporation
and structure, and the name of the applicable refuge area;
(ii) The location of the corporation's population center or
centers;
(iii) An assessment of the socioeconomic impacts, including
historical and traditional use, and their effects on the Native
Corporation as a result of the expansion or establishment of the
refuge; and
(iv) Any other information the Native Corporation believes is
relevant.
(2) Upon receipt of all applications from interested Native
Corporations, the Refuge Manager will determine the ``most directly
affected'' Native Corporation based on, but not limited to, the
following criteria:
(i) The number of acres of surface land within and adjoining the
refuge that the Native Corporation owns, or which has been selected
under the Alaska Native Claims Settlement Act, unless such selection is
determined to be invalid or is relinquished;
(ii) The distance and accessibility from the Native Corporation's
population center and/or business address to the applicable refuge; and
(iii) The socio-economic impacts, including historic and
traditional use, and their effects as a result of the expansion or
establishment of the refuge.
(3) In the event that more than one Native Corporation is
determined to be equally affected, each such Native Corporation shall
be considered as a preferred operator under this section.
(4) The Refuge Manager's ``most directly affected'' Native
Corporation determination or when requested, the Regional Director's
appeal decision for a refuge is applicable for all new visitor services
in that refuge.
(5) Any Native Corporation that has not applied for a most directly
affected Native Corporation determination may apply for a determination
upon issuance of a future solicitation for a new visitor service. A
corporation determined to be most directly affected for a refuge will
maintain that status for all future visitor service solicitations.
(g) Appeal procedures.
Any person(s) who believe that they have been improperly denied
rights with respect to providing visitor services under this section
may appeal the denial to the Regional Director. Such an appeal must be
submitted in writing within forty-five (45) days of receipt of the
denial from which an appeal is sought. The appeals process as defined
in 50 CFR Subpart F, 36.41 (b) will apply with exception of the period
of time allowed to file an appeal.
Dated: September 10, 1996.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 97-884 Filed 1-13-97; 8:45 am]
BILLING CODE 4310-55-P
