[Federal Register Volume 61, Number 203 (Friday, October 18, 1996)]
[Rules and Regulations]
[Pages 54334-54342]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-26279]
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DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Part 13
RIN 1024-AC19
National Park System Units in Alaska
AGENCY: National Park Service, Interior.
ACTION: Final rule.
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SUMMARY: These regulations will implement section 1307 of the Alaska
National Interest Lands Conservation Act of 1980 (ANILCA). This action
is necessary to establish procedures for administering the statutory
rights and preferences established by section 1307 for certain persons
to conduct revenue-producing visitor services in certain units of the
National Park System located in the State of Alaska. Particularly, this
rulemaking provides guidance in the solicitation, award and renewal of
Alaska visitor service authorizations in park areas.
EFFECTIVE DATE: This rule is effective November 18, 1996, except
Secs. 13.82-13.85 will become effective upon OMB approval of the
Information Collection requirements. A document will be published in
the Federal Register establishing an effective date for Secs. 13.82-
13.85.
FOR FURTHER INFORMATION CONTACT: Rebecca L. Rhea, Concessions
Management Analyst, Alaska System Support Office, National Park
Service, 2525 Gambell Street, Room 107, Anchorage, Alaska 99503-2892.
Phone: 907-257-2529.
SUPPLEMENTARY INFORMATION:
Background
ANILCA (16 U.S.C. 3101 et seq.) was signed into law on December 2,
1980.
[[Page 54335]]
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 as part
of the National Park 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--
(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;
(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 that portion of Lake Clark National Park and
Preserve that is located within the Cook Inlet Region.
In general, in passing section 1307 of ANILCA, Congress recognized
that the creation and expansion of Conservation System Units (CSUs) in
Alaska would have an impact on historical operators, Native
Corporations and local residents. Therefore, historical operators,
Native Corporations and local residents were provided with preferences
to benefit from the opportunity to provide desirable visitor services
in the CSUs. It is the intent of these regulations to clarify and
implement the preferences contained in section 1307 of ANILCA.
The National Park Service (NPS) was created by Congress in 1916 to
manage the growing number of park areas. The purpose of the NPS as
stated in the NPS Organic Act of August 25, 1916, is ``to conserve the
scenery and the natural and historic objects and the wildlife therein,
and to provide for the enjoyment of the same in such a manner and by
such means as will leave them unimpaired for the enjoyment of future
generations'' (16 U.S.C. 1). Additionally, Congress has declared that
the National Park System should be, ``preserved and managed for the
benefit and inspiration of all the people of the United States'' (16
U.S.C. 1a-1). The NPS seeks both to preserve and to provide for the
public enjoyment of significant aspects of the Nation's natural and
cultural heritage.
To provide park visitors necessary and appropriate facilities and
services to enjoy park areas, Congress established a concessions
program in the NPS through the Concessions Policy Act of 1965 (16
U.S.C. 20). Regulations implementing the Concessions Policy Act are
found in 36 CFR Part 51.
The Concessions Policy Act authorizes the Secretary of the Interior
or designee to enter into concessions contracts or issue permits to
qualified concessioners. The NPS may provide ``necessary and
appropriate'' visitor facilities and services for the public through
these contracts and permits. These services include a wide variety of
commercial visitor services from backcountry guiding to hotel
operations. All are provided by private corporations, partnerships,
individuals or other entities under contract with the NPS. Their
purpose is to provide park visitors with the services and
accommodations that are necessary and appropriate for the enjoyment of
America's national parks. The NPS determines what is necessary and
appropriate through its planning process. Visitor needs vary with the
purposes of the various park areas and the circumstances at the time of
contracting. As applicable, the Concessions Policy Act grants a
preference in renewal of concession authorizations to those
concessioners who have performed contractual obligations to the
satisfaction of the Secretary. In addition, the NPS authorizes certain
categories of visitor services through incidental business permits.
Holders of the permits do not obtain any preference in renewal. These
regulations describe the relationship between section 1307 provisions
and NPS concession permits, contracts and incidental business permits.
Summary of Public Comments
The proposed rule, which was published in the Federal Register on
April 25, 1995 (60 FR 20374), afforded the public an initial comment
period of 60 days from April 25 to June 26, 1995. In response to
numerous requests, the comment period was reopened an additional 60
days from July 13 to September 11, 1995. The U.S. Fish and Wildlife
Service (FWS) simultaneously published similar proposed rules
implementing section 1307. Joint public meetings were held in Anchorage
and Fairbanks by the NPS and the FWS. The NPS also held meetings in
Gustavus, Juneau and Yakutat. All written and all oral comments
received were shared between the NPS and the FWS. The NPS received 46
written comments. The FWS received 28 comments, 20 which duplicated
comments sent to the NPS. Of the 46 written comments received by the
NPS, 4 were from individuals, 14 were from Native corporations or
Native villages, 19 were from concessioners or permittees, 4 were from
special interest groups, 1 was from State Government, 2 were from the
Federal Government and 2 were from other businesses. After considering
all public comments, the NPS has decided to revise the proposed rule
and to proceed with the final rule. The following analysis applies only
to those comments that related to the NPS proposed rule and are
discussed on a section-by-section basis.
Analysis of Public Comments
General Comments
There were a number of general comments. Some comments questioned
the relationship between Native corporations and the Indian Self-
Determination Act. The Indian Self-Determination Act does not apply to
the provision of visitor services on Federal lands. One commenter
suggested that Glacier Bay vessels should be excluded from section
1307. However, the law only excludes sport fishing and hunting. There
were comments about the relationship between section 1307 and the
Concessions Policy Act and the impact of section 1307 on existing
satisfactory concessioners. These relationships are described in the
final regulations. A number of commenters objected to the rule being
applied retroactively to January 1, 1979, with criteria that were
previously unknown to operators. However, the NPS cannot alter the
effective date of section 1307 and believes that the provisions of
these regulations, to the extent they may be considered retroactive,
are required by ANILCA and, in any event, otherwise are fair in light
of NPS administration of
[[Page 54336]]
section 1307 since its enactment. This issue is discussed further below
in connection with transfers in controlling interests of historical
operators.
The NPS considers that the preferences established in section 1307
take precedence over the preferential right of renewal granted NPS
concessioners by 16 U.S.C. 20 et seq. With respect to revenue producing
visitor services, section 1307 takes precedence over all other laws,
including those for awarding or renewing concessions contracts or
annual funding agreements under the Tribal Self-Governance Act. Several
commenters expressed concerns that giving preferences does not always
allow the selection of the best qualified provider and that entities
without a preference may be discouraged from submitting proposals to
provide visitor services. The NPS, in drafting these regulations, has
taken into account the objectives of quality service and competition,
as well as the legal rights provided by section 1307.
In addition to the specific changes discussed section-by-section,
the NPS has made a number of editorial changes to the text of the
proposed regulations for the purposes of clarity and consistency.
Section 13.80 Applicability and Scope
A new sentence has been added to Sec. 13.80(b) to clarify that,
although section 1307 gives preferences in the issuance of visitor
services authorizations, it does not require that such authorizations
be issued except as otherwise mandated by statute. For example, even
after the selection of a visitor service authorization has been made,
the NPS may determine that the authorization is inappropriate for
resource protection or other reasons, in which case it may choose not
to execute the authorization. Likewise, the NPS retains the authority
to terminate executed authorizations under their terms. In this same
connection, a sentence has been added that clarifies that nothing in
this subpart requires the NPS to issue a visitor services authorization
to a person who is not capable of carrying out the terms and conditions
of the authorization in a satisfactory manner. Finally, a new paragraph
(c) has been added to state that, as set forth in section 1307, these
regulations do not apply to the guiding of sport hunting or fishing.
Section 13.81 Definitions
Section 13.81 provides a number of definitions for terms used in
the regulations. A definition of ``best offer'' has been included for
clarity. The definition of ``similar visitor services'' has been
deleted since the term is explained in the body of the regulations. The
term ``persons'', as used in these regulations, is defined in 36 CFR
1.4.
Some comments were objections that it would be unfair to apply
several of the definitions without basis in law. In response to the
comments, some definitions were changed. One commenter stated that the
definition of controlling interest should be ``actual exercise'' of
management authority. The definition was not changed as the NPS
believes it properly implements the intentions of section 1307 with
respect to the complex issue of degrees of involvement in a business
sufficient to warrant recognition of the rights provided by section
1307.
In response to comments, the continuity of service criteria was
dropped in the definition of historical operator. Continuity of service
requirements are discussed in the main body of the regulations. In
addition, a phrase has been added to the definition of historical
operator to explain that a statute besides ANILCA may declare a person
to be a historical operator (as is the case with respect to one Glacier
Bay National Park cruise ship concessioner). Finally, the definition
has been modified to explain that historical operators are to conduct
their activities pursuant to a valid visitor services authorization.
A number of commenters objected to the definition of local area and
thought that the size of a community should have no bearing on the
definition of local. Some comments opposed the 35-mile straight-line
boundary since it would exclude some communities that have historic
ties to certain park areas. Due to the size of the park areas, the NPS
also recognized that under the proposed definition, a local resident
could be far removed from the geographic area of the area of a park
where a service is to be provided.
Consequently, the definition of local area has been changed to an
area within 100 miles of the location within the park area where the
service is authorized to be provided, and the community population
limit was dropped. Depending upon the service, the local area may
include the entire park area or a portion of the park area. The 100-
mile radius is consistent with Tier 2 of the recommendations of the
Alaska Land Use Council for defining local resident.
The definitions under local resident were rewritten for clarity. In
response to a comment asking for time restrictions to qualify an
individual as a local resident, a criterion was added that an
individual must have lived within the local area a minimum of 12
consecutive months. This prohibits an individual from moving into a
local area and immediately qualifying as a local resident.
Some commenters objected to the definition of local corporation
that required both the corporate headquarters to be located in the
local area and a majority of shareholders to qualify individually as
local residents. The definition of local corporation was changed to a
corporation in which the controlling interest is owned by individual
local residents. In addition, the definition has been clarified to
state, with respect to non-profit corporations, that in order to be
considered local, a majority of its board members and officers must
qualify as local residents. This definition maintains the statutory
intent of providing a preference to persons who have a strong presence
in the local community.
The definition of preferred operator was reworded to more closely
track statutory language. For clarification, the definition of
responsive offer was added using the definition at 36 CFR 51.5(c). The
definition of similar services was deleted as being unnecessary, as the
term is defined in the body of the regulations. A new definition,
visitor services authorization, has been added for clarity to encompass
in one term all types of instruments the NPS may use to authorize
visitor services.
Section 13.82 Historical Operators
These provisions implement subsection (a) of section 1307 and
permit persons who were adequately providing visitor services in
applicable areas in Alaska prior to January 1, 1979, to continue to do
so under reasonable terms and conditions. Such persons are referred to
as ``historical operators.'' The paragraphs in this section were
rearranged for clarity.
Section 13.82 explains that the existence of a right to continue to
provide visitor services under subsection 1307(a) is not an unlimited
right. The right is subordinate to the management of the park area and
does not grant a monopoly to provide all visitor services in a given
area to the exclusion of other individuals or entities. A historical
operator, however, may be authorized to provide services similar to
those provided before January 1, 1979, if acceptable to the NPS as
consistent with the purposes of the park and provided that the similar
services are not in excess of those provided by the concessioner as of
January 1, 1979. In addition, the rights of a historical operator are
considered terminated
[[Page 54337]]
upon a change in the controlling interest in the historical operator.
This provision is intended to implement the ``grandfather clause''
purposes of section 1307(a) while not permitting the sale or transfer
of these ``grandfather rights'' to third parties consistent with the
intentions of section 1307.
Persons who, on or before January 1, 1979, were engaged in
adequately providing any type of visitor service within a park area in
Alaska, who have continued to provide that visitor service and who have
retained controlling interest in the business are considered historical
operators under these regulations.
Some commenters objected to the requirement that the rights of
historical operators would terminate if there was a break in service of
more than 11 consecutive months since there could be a number of
legitimate reasons why the business could not operate for one season.
This requirement was changed to a break in service of no more than 24
consecutive months. This will allow an operator to miss one season of
operation without jeopardizing the permit or contract unless the terms
of the permit or contract require the service to be provided.
Several commenters expressed concerns about the loss of historic
rights if there has been a change in controlling interest since January
1, 1979. There were concerns about transferring a permit to a surviving
spouse, to another partner, the impact of incorporating and bringing in
additional stockholders and the impact of selling a corporation to a
different parent corporation removed from the daily operation of the
business.
In response, with respect to individual historic operators, a new
provision has been added to Sec. 13.82(e) that if a change in a
controlling interest only results in the acquisition of the controlling
interest by individuals who were personally engaged in that visitor
service activity before January 1, 1979, historical operator rights
will continue to be recognized. For example, an individual (qualified
as an historical operator) holding a visitor services authorization may
transfer a controlling interest in the business to a spouse, child or
informal partner, if the transferee was personally engaged in the
conduct of the historical operator's business before January 1, 1979.
The rules have not been changed with respect to corporations. The
intention of the regulations in this regard, consistent with NPS'
understanding of the intentions of section 1307, is to treat
corporations in a similar manner as individuals, with respect to the
consequences of a change in ownership. To do otherwise would result in
an anomaly. That is, the historical rights of individuals would
necessarily lapse as a matter of law upon the individual's death or
sale of the business under the terms of section 1307, while a corporate
historical operator would retain the statutory right forever, as long
as the corporate entity remained in existence, even though the actual
ownership of the corporation passes to persons who had no involvement
in the business before January 1, 1979. These regulations, consistent
with the intentions of section 1307 and in the interests of fairness,
provide individuals who provided visitor services prior to January 1,
1979, the same rights to continue those services regardless of whether
the form of business was a sole proprietorship, partnership or
corporation. Section 1307 was intended to ``grandfather'' persons who
were engaged in providing visitor services before January 1, 1979, so
as not to arbitrarily close businesses as a result of the passage of
ANILCA. However, the statute, consistent with its intentions, does not
provide for the sale or transfer of the statutory rights it creates.
Commenters expressed concerns about applying the controlling
interest requirement retroactively to January 1, 1979. This date,
however, is clearly stated in section 1307, and the NPS has advised
interested persons of these requirements in the administration of
visitor services authorizations since the passage of ANILCA.
Also in response to comments, a new provision has been added which
says historical operators may apply for a visitor services
authorization in a joint venture with other persons, but that
historical operating rights will only be recognized if the historical
operator has the controlling interest in the joint venture. This
provision allows business flexibility without compromising the
statutory intention of section 1307.
Section 13.83 Preferred Operators
This section implements subsection (b) of section 1307 (except with
respect to CIRI) and grants a preference (generally defined for the
purpose of these regulations as a right to meet the terms of the best
offer received by the NPS in a public solicitation process for visitor
services) to certain individuals and corporations to provide visitor
services in Alaska park areas. The section has been modified to clarify
that it takes effect only when there is a competitive award of a
visitor services authorization.
Section 13.83 of the regulations applies to the two categories of
persons to be given a preference pursuant to section 1307(b) of ANILCA,
collectively referred to as preferred operators. The first category of
preferred operator is the Native corporation determined by the Director
to be most directly affected by the establishment or expansion of a
park area.
The second category of preferred operator consists of persons who
are determined by the Director to be local residents of any park area,
whether or not it existed before ANILCA. A local resident as defined in
these regulations means a person living within 100 straight-line miles
of the location within a park area where the service is to be provided.
Section 13.83 establishes a procedure for the solicitation and
award of visitor service authorizations that incorporates the rights of
preferred operators under section 1307(b). In order to exercise the
preference, a preferred operator must submit a responsive offer under
the terms of a public solicitation. Some commenters said it was unfair
to allow all preferred operators the opportunity to match the better
offer and that the rule as written would discourage everyone except
preferred operators from submitting proposals. In response to those
concerns, the regulation has been amended to explain that if, after all
the responsive offers are reviewed, a preferred operator has submitted
an offer that is substantially equal to or better than any other offer,
the preferred operator will be awarded the contract or permit. In
addition, redundant express requirements regarding capability have been
deleted from this section.
It was apparent from the public comments that there was some
confusion about the relationship between the two categories of
preferred operators. Local residents and most directly affected Native
corporations have equal preference in the award of a visitor service
authorization. A statement to this effect was added to 13.83(c).
As with historical operators, the NPS does not believe section
1307(b) intended to provide preferred operators with an exclusive right
to provide visitor services. Section 13.83 permits other persons to
provide visitor services in park areas in a manner consistent with the
preference of preferred operators. Accordingly, public solicitations
for section 13.83 purposes will generally be the public solicitation
used for general concession authorizations under 36 CFR Part 51.
Section 13.83 (b) was changed to read that an amended offer from a
preferred operator must substantially equal the terms of the best offer
rather than meet
[[Page 54338]]
the terms of the best offer. This change is consistent with 36 CFR Part
51.
Some commenters questioned why a Native corporation was required to
submit additional information in Section 13.83(d) that was not required
of local corporations. This was not the intention of the proposed rule.
Section 13.83(d) was rewritten to require that Native corporations and
local corporations both must document their controlling interest in the
joint venture making the offer to provide a commercial service. This
change addresses the concerns of commenters who where opposed to
allowing a preferred operator to serve as a front for another business
entity.
Finally, paragraph (d) has been amended, in response to comments,
to allow a preferred operator to submit an offer in the form of a joint
venture, as long as the preferred operator has a controlling interest
in the joint venture. This provides appropriate business flexibility
without compromising the intentions of section 1307.
Section 13.84 Preference to Cook Inlet Region, Incorporated
This section describes the right of first refusal granted by
section 1307(b) to Cook Inlet Region, Incorporated (CIRI) to provide
new visitor services within that portion of Lake Clark National Park
and Preserve that is within the boundaries of the Cook Inlet Region. A
number of changes were made in response to comments received from CIRI.
The comma before ``when appropriate'' was deleted to be consistent with
section 1307. The regulation was modified to state that the NPS is to
solicit competitive offers as the first step in the possible exercise
of CIRI's right of first refusal. The 90-day deadline for CIRI to make
a responsive offer, as specified in section 1307, was added. The
requirement to document total ownership in the business entity making
the offer was changed to documentation of controlling interest by CIRI,
in cooperation with village corporations within the Cook Inlet Region
when appropriate. The requirement to document controlling interest is
consistent with Sec. 13.83(d) as rewritten. Kijik Corporation expressed
concerns about this section since they have land within the same
region. This section of the rule was written to match the language in
section 1307 as closely as possible.
Section 13.85 Most Directly Affected Native Corporation Determination
This section establishes procedures and criteria for determining
which Native corporation was most directly affected by the
establishment or expansion of a park area and accordingly is a
preferred operator with respect to that park area. Each Native
corporation has the opportunity to be considered for a determination of
``most directly affected.'' The Director's ``most directly affected''
Native corporation decision or appeal decision is applicable for all
future visitor services for that park or preserve. However, a new
sentence has been added to Sec. 13.85 to permit Native corporations
that did not apply for ``most affected'' status at earlier
opportunities to apply for ``equally affected'' Native corporation
status in connection with subsequent visitor services authorizations.
The word ``new'' in 13.85(a) was deleted. This rule applies to all
visitor services in park areas, not just to new services. Several
comments received from Native corporations objected to some of the
criteria used to determine most directly affected. This section lists
criteria considered, but is not all-inclusive. Nor are the criteria
listed in priority order. The NPS wants to afford the opportunity for
Native corporations and Native villages to provide information
pertinent to making this determination. Under the application section,
a provision was added to allow a Native corporation the opportunity to
submit any information it considers relevant in making the ``most
directly affected'' determination. Under the socioeconomic impacts
criteria, consideration for historic and traditional uses of park areas
and land-use patterns by Native corporations was added.
Some commenters objected to the criteria concerning ownership of
land. It is not necessary for a Native corporation to own surface acres
within and adjoining a Conservation System Unit in order to qualify as
``most directly affected.'' Land ownership is one of several criteria
used in making the determination. The regulation has been modified in
this regard, and, has been modified to explain that in making such
determinations, the NPS may take into account other information
considered relevant and require an applicant to submit additional
information when appropriate. It is the intention of the NPS to use a
public process to make these determinations.
Section 13.86 Appeal Procedures
This section establishes procedures and criteria under which people
who believe they have not been provided section 1307 rights under this
subpart may appeal to the Director for a final administrative
determination in this regard. In response to comments, and in
accordance with policy, this section was changed to allow an appeal to
be made to the next higher level of authority in the NPS which is the
Director.
Paperwork Reduction Act
The collections of information contained in Secs. 13.82-13.85 of
this rule are for the purposes of preparing offers in response to
contract solicitations pursuant to 36 CFR Part 51, and have previously
been approved by the Office of Management and Budget under 44 U.S.C.
3501 et seq. and assigned clearance number 1024-0125. This approval
expired in January 1996. However, OMB has given emergency approval to
the NPS for the collection of information under the same authorization
number for the basic contracting program for a limited period of time.
The NPS has submitted the necessary documentation to OMB requesting 3
year approval for the collection of information for all areas covered
by this rule. A document will be published in the Federal Register
establishing an effective date for Secs. 13.82-13.85 when that approval
is received from OMB.
The NPS is advertising the availability of concession opportunities
within park areas, requiring that parties interested in being awarded a
concession contract submit offers to provide the necessary facilities
and services. The public reporting burden for the collection of
information in this instance is estimated to be 480 hours for large
operations and 240 hours for small operations, including the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed and completing and reviewing the collection
of information. The request for the collection of information contained
in these sections has been submitted to the Office of Management and
Budget (OMB) under 44 U.S.C. 3501 et seq. for approval. The collection
of this information will not be required until it has been approved by
OMB.
Send comments regarding this burden estimate or any other aspect of
this collection of information, including suggestions for reducing the
burden of these information collection requests, to Information
Collection Officer, National Park Service, 800 North Capitol Street,
Washington, D.C. 20013; and the Office of Management and Budget, Office
of Information and Regulatory Affairs, Attention: Desk Officer for
Department of the Interior (1024-0125), Washington, D.C. 20503.
[[Page 54339]]
Compliance With Other Laws
This rule was reviewed by the Office of Management and Budget under
Executive Order 12866. It was determined that this document will not
have a significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The economic effects of this rulemaking are local and negligible.
The NPS has determined and certifies pursuant to the Unfunded
Mandates Reform Act, 2 U.S.C. 1502 et seq., that this proposed rule
will not impose a cost of $100 million or more in any given year on
local, State or tribal governments, or private entities.
The Regulatory Flexibility Act further requires the preparation of
flexibility analysis for rules that will significantly affect a
substantial number of small entities including small businesses,
organizations, or governmental jurisdictions. Local visitor service
providers, exercising their right under Section 1307(b) of ANILCA, will
benefit more 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. Therefore, this rule would have no
``significant'' economic impact on the local communities or local
governmental entities. The NPS has determined that this rulemaking will
not significantly affect the quality of human environmental health and
safety because it is not expected to:
(a) Increase public use to the extent of compromising the nature
and character of the area or causing physical damage to it;
(b) Introduce incompatible uses which might compromise the nature
and characteristics of the area, or cause physical damage to it;
(c) Conflict with adjacent ownerships of land uses; or
(d) Cause a nuisance to adjacent owners or occupants.
Based upon this determination, this rulemaking is categorically
excluded from the procedural requirements of the National Environmental
Policy Act (NEPA) by Departmental guidelines in 516 DM 6 (49 FR 21438).
As such, neither an environmental assessment (EA) nor an environmental
impact statement (EIS) has been prepared.
List of Subjects in 36 CFR Part 13
Alaska, National parks, Reporting and recordkeeping requirements.
In consideration of the foregoing, 36 CFR Chapter I is amended as
follows:
PART 13--NATIONAL PARK SYSTEM UNITS IN ALASKA
1. The authority citation for part 13 continues to read as follows:
Authority: 16 U.S.C. 1, 3, 462(k), 3101 et seq.; Sec. 13.65 also
issued under 16 U.S.C. 1a-2(h), 20, 1361, 1531, 3197.
2. Section 13.2 is amended by redesignating paragraph (e) as
paragraph (f), and a new paragraph (e) is added to read as follows:
Sec. 13.2 Applicability and scope.
* * * * *
(e) Subpart D of this part 13 contains regulations applicable to
authorized visitor service providers operating within certain park
areas. The regulations in subpart D of this part amend in part the
general regulations contained in this chapter.
* * * * *
3. In part 13, a new Subpart D is added to read as follows:
Subpart D--Special Visitor Services Regulations
Sec.
13.80 Applicability and scope.
13.81 Definitions.
13.82 Historical operators.
13.83 Preferred operators.
13.84 Preference to Cook Inlet Region, Incorporated.
13.85 Most directly affected Native Corporation.
13.86 Appeal procedures.
13.87 Information collection.
Subpart D--Special Visitor Services Regulations
Sec. 13.80 Applicability and scope.
(a) Except as otherwise provided for in this section, the
regulations contained in this part apply to visitor services provided
within all national park areas in Alaska.
(b) The rights granted by this subpart to historical operators,
preferred operators, and Cook Inlet Region, Incorporated are not
exclusive. The Director may authorize other persons to provide visitor
services on park lands. Nothing in this subpart shall require the
Director to issue a visitor services authorization if not otherwise
mandated by statute to do so. Nothing in this subpart shall authorize
the Director to issue a visitor services authorization to a person who
is not capable of carrying out its terms and conditions in a
satisfactory manner.
(c) This subpart does not apply to the guiding of sport hunting or
sport fishing.
Sec. 13.81 Definitions.
The following definitions apply to this subpart:
(a) Best offer means a responsive offer that best meets, as
determined by the Director, the selection criteria contained in a
competitive solicitation for a visitor services authorization.
(b) Controlling interest means, in the case of a corporation, an
interest, beneficial or otherwise, of sufficient outstanding voting
securities or capital of the business so as to permit the exercise of
managerial authority over the actions and operations of the corporation
or election of a majority of the board of directors of the corporation.
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 or its capital so as to permit
the exercise of managerial authority over the actions and operations of
the entity. In other circumstances, controlling interest means any
arrangement under which a third party has the ability to exercise
management authority over the actions or operations of the business.
(c) Director means the Director of the National Park Service or an
authorized representative.
(d) Historical operator, except as otherwise may be specified by a
statute other than ANILCA, means the holder of a valid written
authorization from the Director to provide visitor services within a
park area that:
(1) On or before January 1, 1979, was lawfully engaged in
adequately providing such visitor services in the applicable park area;
(2) Has continued, as further defined in Sec. 13.82, to lawfully
provide that visitor service since January 1, 1979, without a change in
controlling interest; and
(3) Is otherwise determined by the Director to have a right to
continue to provide such services or similar services pursuant to
Sec. 13.82.
(e) Local area means an area in Alaska within 100 miles of the
location within the park area where any of the applicable visitor
services is authorized to be provided.
(f) Local resident means:
(1) For individuals. Those individuals who have lived within the
local area for 12 consecutive months before issuance of a solicitation
of offers for a visitor services authorization for a park area and who
maintain their primary, permanent residence and business within the
local area and whenever absent from this primary, permanent residence,
have the intention of returning to it. Factors demonstrating
[[Page 54340]]
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 registration.
(2) 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 subpart. For non-profit
corporations a majority of the board members and a majority of the
officers must qualify individually as local residents.
(g) Native Corporation means the same as defined in section 102(6)
of ANILCA.
(h) Preferred operator means a Native Corporation that is
determined under Sec. 13.85 to be ``most directly affected'' by the
establishment or expansion of a park area by ANILCA, or a local
resident as defined in this subpart.
(i) Responsive offer is one that is timely received and meets the
terms and conditions of a solicitation for a visitor services
authorization.
(j) Visitor services authorization is a written authorization from
the Director to provide visitor services in a park area. Such
authorization may be in the form of a concession permit, concession
contract, or other document issued by the Director under National Park
Service policies and procedures.
Sec. 13.82 Historical operators.
(a) A historical operator will have a right to continue to provide
visitor services in a park area under appropriate terms and conditions
contained in a visitor services authorization issued by the Director as
long as such services are determined by the Director to be consistent
with the purposes for which the park area was established. A historical
operator may not operate without such an authorization. The
authorization will be for a fixed term. Failure to comply with the
terms and conditions of the authorization will result in cancellation
of the authorization and consequent loss of historical operator rights
under this subpart.
(b) Nothing in this subpart will prohibit the Director from
permitting persons in addition to historical operators to provide
visitor services in park areas at the Director's discretion as long as
historical operators are permitted to conduct a scope and level of
visitor services equal to those provided before January 1, 1979, under
terms and conditions consistent with this subpart. A historical
operator may be permitted by the Director under separate authority to
increase the scope or level of visitor services provided prior to
January 1, 1979, but no historical operating rights will be obtained in
such increase.
(c) If a historical operator applies for a visitor services
authorization in the form of a joint venture, the application will not
be considered as validly made unless the historical operator
demonstrates, to the satisfaction of the Director, that it has the
controlling interest in the joint venture.
(d) A historical operator may apply to the Director for an
authorization or amended authorization to provide visitor services
similar to those it provided before January 1, 1979. The Director will
grant the request if such visitor services are determined by the
Director to be:
(1) Consistent with the protection of park resources and the
purposes for which the park area was established;
(2) Similar in kind and scope to the visitor services provided by
the historical operator before January 1, 1979; and
(3) Consistent with the legal rights of any other person.
(e) When a historical operator's visitor services authorization
expires, and if the applicable visitor services continue to be
consistent with the purposes for which the park area was established as
determined by the Director, the Director will offer to renew the
authorization for a fixed term under such new terms and conditions as
the Director determines are in the public interest.
(f) If the Director determines that authorized visitor services
must be curtailed or reduced in scope, level, or season to protect park
resources, or for other purposes, the Director will 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 Director
will 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
Director will select one historical operator to continue to provide the
curtailed visitor services through a competitive selection process.
(g) Any of the following will result in loss of historical operator
status:
(1) Revocation of an authorization for historic types and levels of
visitor services for failure to comply with the terms and conditions of
the authorization.
(2) A historical operator's declination of a renewal of the
authorization made pursuant to paragraph (d) of this section.
(3) A change in the controlling interest of the historical operator
through sale, assignment, devise, transfer, or by any other means,
direct or indirect. A change in the controlling interest of a
historical operator that results only in the acquisition of the
controlling interest by an individual or individuals who were
personally engaged in the visitor services activities of the historical
operator before January 1, 1979, will not be deemed a change in the
historical operator's controlling interest for the purposes of this
subpart.
(4) A historical operator's failure to provide the authorized
services for more than 24 consecutive months.
(h) The Director may authorize other persons to provide visitor
services in a park area in addition to historical operators.
Sec. 13.83 Preferred operators.
(a) In selecting persons to provide visitor services for a park
area, the Director will, if the number of visitor services
authorizations is to be limited, give a preference (subject to any
rights of historical operators or CIRI under this subpart) to preferred
operators determined qualified to provide such visitor services.
(b) In such circumstances, the Director will publicly solicit
competitive offers for persons to apply for a visitor services
authorization, or the renewal of such an authorization, to provide such
visitor services pursuant to 36 CFR part 51 and/or other National Park
Service procedures. All offerors, including preferred operators, must
submit a responsive offer to the solicitation in order to be considered
for the authorization. If the best offer from a preferred operator is
at least substantially equal to the best offer from a non-preferred
operator, the preferred operator will receive authorization. If an
offer from a person besides a preferred operator is determined to be
the best offer (and no preferred operator submits a responsive offer
that is substantially equal to it), the preferred operator who
submitted the best offer from among the offers submitted by preferred
operators will be given the opportunity, by amending its offer, to meet
the terms and conditions of the best offer received. If the amended
offer of such a preferred operator is considered by the Director as at
least substantially equal to the best offer, the preferred operator
will receive the visitor service authorization.
[[Page 54341]]
If a preferred operator does not amend its offer to meet the terms and
conditions of the best offer, the Director will issue the authorization
to the person who submitted the best offer in response to the
solicitation.
(c) The Native Corporation(s) determined to be ``most directly
affected'' under this subpart and local residents have equal
preference. The rights of preferred operators under this section take
precedence over the right of preference that may be granted to existing
satisfactory National Park Service concessioners pursuant to the
Concessions Policy Act (16 U.S.C. 20) and its implementing regulations
and procedures, but do not take precedence over the rights of
historical operators or CIRI as described in this subpart.
(d) An offer from a preferred operator under this subpart, if the
offer is in the form of a joint venture, will not be considered valid
unless it documents to the satisfaction of the Director that the
preferred operator holds the controlling interest in the joint venture.
(e) Nothing in this subpart will prohibit the Director from
authorizing persons besides preferred operators to provide visitor
services in park areas as long as the procedures described in this
section have been followed. Preferred operators are not entitled by
this section to provide all visitor services in a park area.
(f) The preferences described in this section may not be sold,
assigned, transferred or devised, directly or indirectly.
Sec. 13.84 Preference to Cook Inlet Region, Incorporated.
(a) The Cook Inlet Region, Incorporated (CIRI), in cooperation with
village corporations within the Cook Inlet region when appropriate,
will have a right of first refusal to provide new visitor services
within that portion of Lake Clark National Park and Preserve that is
within the boundaries of the Cook Inlet region. In order to exercise
this right of first refusal, the National Park Service will publicly
solicit competitive offers for the visitor services authorization
pursuant to 36 CFR part 51 or other applicable National Park Service
procedures. CIRI must submit a responsive offer within 90 days of such
solicitation. If CIRI makes such an offer and is determined by the
Director to be capable of carrying out the terms and conditions of the
visitor services authorization, it will receive the authorization. If
it does not, the authorization may be awarded to another person
pursuant to usual National Park Service policies and procedures if
otherwise appropriate.
(b) The CIRI right of first refusal will have precedence over the
rights of preferred operators. An offer from CIRI under this section,
if the offer is in the form of a joint venture, will not be considered
valid unless it demonstrates to the satisfaction of the Director that
CIRI has a controlling interest in the joint venture.
(c) The CIRI right of first refusal may not be sold, transferred,
devised or assigned, directly or indirectly.
Sec. 13.85 Most directly affected Native Corporation.
(a) Before the award of the first visitor service authorization in
a park area to be made after the effective date of this subpart, the
Director will provide an opportunity for any Native Corporation
interested in providing visitor services within the applicable park
area to submit an application to the superintendent to be determined
the Native Corporation most directly affected by the establishment or
expansion of the park area by or under the provisions of ANILCA. An
application from an interested Native Corporation will include the
following information:
(1) Name, address, and phone number of the Native Corporation; date
of incorporation; its articles of incorporation and structure;
(2) Location of the corporation's population center or centers; and
(3) An assessment of the socioeconomic impacts, including
historical and traditional use and land-ownership patterns and their
effects on the Native Corporation as a result of the expansion or
establishment of the applicable park area by ANILCA.
(4) Any additional information the Native Corporation considers
relevant or the Director may reasonably require.
(b) Upon receipt of all applications from interested Native
Corporations, the Director will determine the ``most directly
affected'' Native Corporation considering the following factors:
(1) Distance and accessibility from the corporation's population
center and/or business address to the applicable park area; and
(2) Socioeconomic impacts, including historical and traditional use
and landownership patterns, on Native Corporations and their effects as
a result of the expansion or establishment of the applicable park area;
and
(3) Information provided by Native Corporations and other
information considered relevant by the Director to the particular facts
and circumstances of the effects of the establishment or expansion of
the applicable park area.
(c) In the event that more than one Native Corporation is
determined to be equally affected within the meaning of this section,
each such Native Corporation will be considered as a preferred operator
under this subpart.
(d) The Director's most directly affected Native Corporation
determination applies to the award of all future visitor service
authorizations for the applicable park area. However, a Native
Corporation that did not apply for this determination in connection
with an earlier visitor services authorization may apply for a
determination that it is an equally affected Native Corporation for the
applicable park area in connection with a later visitor services
authorization. Such subsequent applications must contain the
information required by paragraph (a) of this section, and must be made
in a timely manner as described by the Director in the applicable
solicitation document so as not to delay the consideration of offers
for the visitor services authorization.
Sec. 13.86 Appeal procedures.
An appeal of the denial of rights with respect to providing visitor
services under this subpart may be made to the next higher level of
authority. Such an appeal must be submitted in writing within 30 days
of receipt of the denial. Appeals must set forth the facts and
circumstances that the appellant believes support the appeal. The
appellant may request an informal meeting to discuss the appeal with
the National Park Service. After consideration of the materials
submitted by the appellant and the National Park Service record of the
matter, and meeting with the appellant if so requested, the Director
will affirm, reverse, or modify the denial appealed and will set forth
in writing the basis of the decision. A copy of the decision will be
forwarded to the appellant and will constitute the final administrative
decision in the matter. No person will be considered to have exhausted
administrative remedies with respect to a denial of rights to provide
visitor services under this subpart until a final administrative
decision has been made pursuant to this section.
Sec. 13.87 Information collection.
(a) The information collection requirements contained in this part
have received emergency approval from the Office of Management and
Budget under 44 U.S.C. 3507, et seq., for the basic contracting program
under OMB clearance number 1024-0125. The information is being
collected as part of the process of reviewing the procedures
[[Page 54342]]
and programs of State and local governments participating in the
national historic preservation program. The information will be used to
evaluate those procedures and programs. The obligation to respond is
required to obtain a benefit.
(b) The public reporting burden for the collection of information
is estimated to be 480 hours for large operations and 240 hours for
small operations, including the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed and completing and reviewing the collection of information,
including suggestions for reducing the burden, to Information
Collection Officer, National Park Service, 800 North Capitol Street,
Washington, D.C. 20013; and the Office of Management and Budget, Office
of Information and Regulatory Affairs, Attention: Desk Officer for the
Department of the Interior (1024-0125), Washington, D.C. 20503.
Dated: July 10, 1996.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 96-26279 Filed 10-17-96; 8:45 am]
BILLING CODE 4310-70-P
