[Federal Register Volume 61, Number 213 (Friday, November 1, 1996)]
[Proposed Rules]
[Pages 56502-56508]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-28105]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
50 CFR Part 36
RIN 1018-AD93
Regulations for the Administration of Special Use Permits on
National Wildlife Refuges in Alaska
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Fish and Wildlife Service (Service) proposes these
regulations to clarify, update, and add to existing regulations for the
administration of all special use permits (permits) on national
wildlife refuges (refuges) in Alaska. These regulations are being
revised to provide the Service with the necessary regulatory authority
to administer the recent changes in the refuges' commercial visitor
service programs and to ensure proper and uniform management of all
permits on refuges in Alaska.
DATES: For written comments to be considered, they must be received by
December 31, 1996.
ADDRESSES: Comments should be sent to the Regional Director, Attention:
Daryle R. Lons, U.S.F.W.S., 1011 Tudor Rd., Anchorage, AK 99503.
FOR FURTHER INFORMATION CONTACT: Daryle R. Lons, telephone (907) 786-
3354.
SUPPLEMENTARY INFORMATION:
Background
The Alaska National Interest Lands Conservation Act of 1980
(ANILCA, Pub.L. 96-487; 94 Stat. 2371) and the National Wildlife Refuge
System Administration Act of 1966 (16 U.S.C. 668dd-668ee) authorize the
Secretary of Interior to prescribe regulations as necessary to
administer permits for compatible activities on refuges in Alaska.
The current regulations governing issuance of permits on units of
the National Wildlife Refuge System in Alaska, codified at 50 CFR
36.41, and originally published in the Federal Register in 1981 (46 FR
40192, August 7, 1981), and were amended in 1986 (51 FR 44794, December
12, 1986). Since then, the permit administration program on refuges in
Alaska has continued to evolve and grow in both size and complexity.
Although special use permits were issued for a variety of economic and
other privileged specialized uses, most permits issued on Alaska
Refuges are for commercial visitor service activities involving guide-
outfitters.
The primary purpose of the revised regulations is to provide better
guidance to Service employees and permittees concerning the
administration of commercial visitor service permits on refuges in
Alaska. Regulations implementing Section 1307 of ANILCA (see 60 FR
20374-20378, April 25, 1995) are currently being promulgated separately
from this rulemaking. The 1307 regulations will establish 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 refuges in Alaska. The 1307
regulations will supplement these proposed regulations.
Since the original regulations were promulgated, the program has
evolved due to significant changes in State of Alaska guiding
regulations and programs, increases in commercial visitor services on
refuges, and changes in the economic environment of the guiding
industry.
The most visible and significant change in the Service's
administration of refuge permits in Alaska was caused by the decision
of the Alaska Supreme Court in Owsichek v. State Guide Licensing and
Control Board, 763 P. 2 d 488 (Alaska 1988). That ruling overturned as
unconstitutional the State of Alaska's (State) system of assigning
exclusive big game guide areas. Until that ruling, the Service depended
upon the State's system for selecting big game guides for use areas
within refuge lands in Alaska. To allow the State an opportunity to
develop a constitutionally acceptable system that would meet Service
needs, the Service imposed a moratorium on issuance of permits to new
big game guide applicants. After a period of operating under this
moratorium, it became apparent that the State would not be able to
adopt and implement a program for selection of big game guide
outfitters which also would satisfy Service requirements and mandates.
Therefore, the Service developed its own interim program in order to
provide an equal opportunity for all registered big game guide-
outfitters to compete for permits to operate on refuges in Alaska.
After soliciting public comment on a draft system, and making revisions
based on those comments, an interim program was implemented in June
1992. Requests for proposals were then solicited and applicants were
notified of selections in January 1993. Successful applicants were
awarded 5-year permits effective July 1, 1993.
It appears unlikely the State will be able to implement a suitable
competitively-based system for selection of guides to start in time to
allow the reissuance of permits in 1998. These revised regulations will
provide the proper authority to allow the Service's big game guide
permitting program to continue.
Another factor in the evolution of the permit program has been the
significant increase in the number of permits being issued by the
refuges. Increase in
[[Page 56503]]
demand for activities such as sport fish guiding and river floating
reached the maximum capacity on several refuges during the late 1980's
and early 1990's. Where the Service has had to limit the numbers of
permittees for certain activities, this was done by awarding permits
through competitive selection processes or by annually renewing permits
for existing permittees until a competitive selection process could be
implemented.
The existing system also needs to be modified to respond to the
changing economic conditions affecting commercial visitor services.
Guides started voicing their concerns in the late 1980's that changing
economic factors and business requirements made it more and more
difficult for commercial visitor service businesses to operate in a
professional and safe manner with the limited financial security
offered by annual permits. Guides have offered strong arguments that
they needed the financial security associated with longer term permits
and the right to transfer their permits when they retired. They also
sought survivor rights for family members and business partners. The
Service addressed their concerns in part by initiating programs to
issue competitively awarded, 5-year permits for sport fish guides on
Togiak National Wildlife Refuge in 1991 and for big game guide
outfitters on all Alaska refuges in 1992. Policy was also revised to
establish a right of survivorship.
As a result of the changes associated with awarding permits
competitively, there has been an apparent overall improvement in
permittee compliance with terms of permits, a reduction in impacts to
refuge resources and other users, and an increase in the quality of
visitor services provided to the public.
Early in 1995, Congress directed the Service to reinstate a short-
lived and effectively unimplemented 1992 policy directive issued by
former Secretary of the Interior Lujan. The 1992 policy required
competitively issued hunting and fishing guide permits to have 5-year
terms with 5-year renewal rights, allowed the privileges of the permits
to be transferable under certain conditions, and required existing
competitively awarded permits to be reissued consistent with the
policy. Shortly after Secretary of the Interior Babbitt's appointment,
he reviewed the 1992 policy and determined that it was inappropriate to
implement such policy without public notice and comment. Subsequently,
Congress supported a return to the earlier policy by including language
in a conference report (H.R. 1977), regarding the Department's Fiscal
Year 1996 appropriations, which directed the Service to reinstate the
1992 policy. The Service is complying with the directive by publishing
these proposed regulations. To meet the intent of the directive, the
proposed regulations also provide a phase-in period of the competitive
system to those permittees who have been conducting a commercial
activity in a refuge where the Service has historically limited the
numbers of permits issued. Although the Service has only been issuing
annual permits to these permittees, the Service, until recently, has
given them a reasonable expectation that they would continue to receive
permits each year as long as they provided good service and met the
terms of their permits. Many of these permittees have invested a
significant amount of time and money and built their lives around a
business which is dependent upon receiving a permit.
The proposed regulations make the 1992 policy applicable to all
competitively awarded commercial visitor service permits, not just
sport fishing and big game hunting guide permits and will provide the
Service with the proper regulatory authority to administer its permit
program. The existing regulations do not address the competitive award
of all big game guide-outfitter permits nor any of the other refuge-
specific, competitively awarded permits. In a recent lawsuit concerning
implementation of the big game guide-outfitter program, the U.S.
District Court's 1994 finding in favor of the Service was influenced by
the Service's commitment to developing regulations addressing
administration of the program.
In summary, the goals of this rulemaking are to provide the public,
commercial service industry, and Service employees with better guidance
for the administration of special use permits on refuges in Alaska; to
enhance the conservation of wildlife resources by establishing a system
in which operators have a more direct, continuing and long-term
interest in conserving and protecting these valuable resources; and to
obtain the most capable operators available to provide safe, high
quality services to the general public.
Analysis of Comments Received
Department of Interior policy is, whenever practicable, to afford
the public an opportunity to participate in the rulemaking process.
Prior to drafting these regulations, individual letters were sent to
all known interested parties and an advance notice was published in the
Federal Register which requested public comments on several issues,
including:
(1) Whether the existing 180-day period allowed for filing appeals
of decisions by refuge managers denying permit applications to the
Regional Director of the Service is appropriate under present
circumstances. By way of comparison, the appeal period in the rest of
the United States is 30 days (50 CFR 25.45);
(2) To what extent should the existing interim system used for
selecting big game guide-outfitters be made part of the regulations;
(3) Whether a different appeal procedure should be used where
permit awards are based upon a competitive selection system such as
that used to select big game guide-outfitters under the existing
interim system; and
(4) Whether provision should be made for suspending the Service's
big game guide-outfitter selection system if the State develops and
implements a system meeting Service requirements.
The Service received 14 letters in response to the advance notice.
These included one letter from the State of Alaska, two letters from
Alaska Native village councils, one letter from a national
environmental organization, one letter from a big game guiding
association, and nine letters from individuals. In addition, the
Service received additional informal follow up comments, mostly from
those who had responded to the advance notice with substantial
comments. The following is an analysis of the written comments received
in response to the notice:
Length of Appeal Period
Four comments were received on the appeal period. One respondent
stated the existing 180-day period is appropriate. Two respondents
recommended that the appeal period be shortened to 30-60 days. Stated
rationale included that a longer period places existing permittees in
an awkward position for a longer period than necessary and prevents
them from committing resources to their operations until the time for
filing an appeal has run or is resolved. One respondent recommended
extending the appeal period up to 1-year because guide-outfitters are
often in isolated areas without access to immediate communication. The
proposed regulations provide for a 45-day appeal period.
Incorporation of Big Game Guide-Outfitter Selection Process Into
Regulations
Six comments were received on making the existing selection process
part of the regulations. Two respondents recommended suspending the
existing
[[Page 56504]]
big game guide selection process completely in favor of the State of
Alaska's existing system. Three respondents supported making the
existing policy, with revisions, part of the regulations. One
respondent recommended that any changes in the administration of
special use permits should be made in policy form instead of revised
regulations. The proposed regulations establish a framework the Service
considers the minimum necessary to provide proper legal authority to
administer the program.
Appeal Procedure
Three respondents commented on the appeal procedure. Two commenters
urged the Service to develop a more objective appeal procedure which is
less biased than the existing system. One respondent proposed that the
issuance of certain types of permits should be subject to public notice
with an appeal process to contest the awarding of permits which are
construed to be controversial.
The regulations establish a revised appeal process including
different allowed time frames from the existing regulations. The
proposed regulations do not establish an appeal mechanism for the
general public to contest the issuance of permits. The Service believes
this would be an unjustifiable administrative burden for most routine
permits. The issuance of future permits authorizing controversial
activities, not within the scope of decisions made during prior public
planning processes in compliance with National Environmental Protection
Act (NEPA) requirements, will be subject to public comment during the
development of appropriate NEPA documentation.
Provision for Suspending Big Game Guide-Outfitter Selection
Provisions
Four comments favored establishing a provision in the regulations
that would suspend the Service's administration of selecting big game
guide-outfitters if the State of Alaska develops satisfactory
competitive selection regulations. The proposed regulations include a
provision for State selection of big game guide-outfitters as well as
sport fishing guides.
Other
The Service received numerous other comments concerning other
administrative aspects of the special use permit program. Most of these
comments were more relevant to upcoming policy development issues
rather than the rule itself. Examples include:
(1) Revising competitive selection criteria;
(2) Structure of selection panels;
(3) Comprehensive review of permit program;
(4) Cumulative impacts of authorized permittee activities; and
(5) Permit fees.
The Service also received several comments regarding permit terms,
transferability, and renewal rights. All but one of these comments
favored longer term permits with renewal rights and allowances for
transferability. The proposed rule provides for 5 year terms with
renewal rights and limited transferability.
One respondent recommended that the Service thoroughly assess the
activities occurring under past and present permits and provide this
information to the public prior to publishing this proposed rule. The
Service does not feel additional assessments are needed because these
regulations focus on the administrative process, not on management
decisions relating to the number and types of permits to be authorized.
Such assessments will be needed during the development or revision of
public use management plans and/or comprehensive conservation plans for
individual refuges.
One respondent recommended changes in the Service's emergency
closure process. These recommendations are applicable to another
section of existing regulations and do not pertain to this proposed
rule.
One respondent recommended that the proposed rule require written
compatibility determinations before any secondary use is allowed.
Compatibility determinations are statutorily required for activities
requiring a special use permit. Written determinations are routinely
completed by every Refuge Manager in Alaska. If the Service determines
there is a need for a regulation on this subject, it will be included
in the next revision of Part 25, Subpart D of Title 50 of the Code of
Federal Regulations which applies to all national wildlife refuges, not
just refuges in Alaska.
Request for Additional Comments
In accordance with Department policy, interested persons may submit
written comments concerning this proposed rule by any of the following:
(1) Mailing to Daryle R. Lons, U.S. Fish and Wildlife Service; 1011
East Tudor Road, Anchorage, AK 99503-6199;
(2) Faxing to Daryle Lons at (907) 786-3657; or
(3) Electronically mailing to daryle_lons@mail.fws.gov.
The Service scheduled public meetings to receive comments in
Anchorage and Fairbanks, Alaska and reviewed and considered all
substantive comments before this proposed rule was published.
Paperwork Reduction Act
As required by the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), the Service has applied for its expired authorization and
clearance number 1018-0077 to be re-instated by the Office of
Management and Budget (OMB). The Service is applying for an emergency
extension and is likewise working on a long-term 3-year authorization
request which will be submitted before the emergency authorization
expires. No information collection will be made until this
authorization is obtained and current.
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 the 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 economic and other privileged use 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 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 3 years, at which time
renewal of approval will be considered by the Service. The public
reporting burden for this collection of information is estimated to
average 1.5 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
[[Page 56505]]
likely respondents is less than ten, yielding a total annual reporting
and recordkeeping burden of 15 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, OME,
Attention: Desk officer for the Interior Department (1018-0077),
Washington, D.C. 20503.
Environmental Considerations
In accordance with 516 DM 2, Appendix 2, the Service has determined
that this action is categorically excluded from the NEPA process as it
contains ``policies, directives, regulations and guidelines of an
administrative, financial, legal, technical or procedural nature'' that
will have no potential for causing substantial environmental impact.
Economic Effects/Regulatory Flexibility Act Compliance
This rulemaking was not subject to review 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 proposed rulemaking would not have a significant effect on a
substantial number of small entities, which include businesses,
organizations, or governmental jurisdictions. The proposed rule will
maintain an overall economic status quo without changes in either the
number or type of permits being issued.
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 proposed regulations meet
the applicable standards provided in Sections 3(a) and 3(b)(2) of
Executive Order 12988.
Primary Author: Daryle R. Lons, Refuge Program Specialist, Fish and
Wildlife Service, Alaska Region.
List of Subjects in 50 CFR Part 36
Alaska, Recreation and recreation areas, Reporting and
recordkeeping requirements, Wildlife refuges.
Accordingly, Part 36 of Chapter I of Title 50 of the Code of
Federal Regulations is proposed to be amended as follows:
PART 36--[AMENDED]
1. The authority citation for Part 36 continues to read as follows:
Authority: 16 U.S.C. 460(k) et seq., 668dd et seq., 742(a) et
seq., 3101 et seq., and 44 U.S.C. 3501 et seq.
2. Section 36.41 is revised to read as follows:
Sec. 36.41 Permits.
(a) Applicability. The regulations contained in this section apply
to the issuance and administration of competitively and
noncompetitively issued permits for economic and/or other privileged
uses on all national wildlife refuges in Alaska. Nothing in this
section requires the refuge manager to issue a special use permit if
not otherwise mandated by statute to do so. Supplemental procedures for
granting historical use, Native Corporation, and local preferences in
the selection of commercial operators to hold permits to provide
visitor services, other than hunting and fishing guiding on refuges in
Alaska, are addressed in Sec. 36.37, Revenue Producing Visitor
Services.
(b) Definitions. As used in this section, the term or terms:
Commercial visitor service shall mean 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. Included is 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;
Entire business shall mean all assets including, but not limited
to, equipment, facilities, and other holdings associated with the
permittee's type of commercial visitor service authorized by permit.
This term also includes assets held under the name of separate business
entities, which provide the same type of commercial visitor services
authorized by permit, that the permittee has a financial interest in.
The term does not include related enterprises owned by the permittee
such as taxidermy and travel services;
Operations plan shall mean a narrative description of the
commercial operations which contains all required information
identified in the prospectus;
Permit shall mean a special use permit issued by the refuge manager
which authorizes a commercial visitor service or other activity
restricted by law or regulation on a national wildlife refuge;
Prospectus shall mean the document that the Service uses in
soliciting competition to award commercial visitor services on a
refuge;
Subcontracting shall mean any activity in which the permittee
provides financial or other remuneration to anyone other than employees
to conduct the specific commercial services authorized by the Service.
The permittee's primary authorized activities must be conducted in a
genuine employer/employee relationship where the source of all
remuneration for services provided to clients is from the permittee.
Subcontracting does not apply to booking services or authorized
secondary services provided to clients in support of the permittee's
primary authorized activities (e.g., a guide paying a marine or air
taxi operator to transport clients);
Subletting shall mean any activity in which the permittee receives
financial or other remuneration in return for allowing another
commercial operator to conduct any of the permittee's authorized
activities in the permittee's use area; and
Use area shall mean the designated area that a permittee is
authorized to conduct commercial services in.
(c) General provisions. In all cases where a permit is required,
the permittee must abide by the conditions under which the permit was
issued. Refuge managers will provide written notice to the permittee in
all cases where documentation of noncompliance is prepared for use in
any administrative proceeding involving the permittee.
(d) Application. (1) This section and other regulations in this
part 36, generally applicable to the National Wildlife Refuge System
require that permits be obtained from the refuge manager. For
activities on the following refuges, permits are to be obtained from
the respective refuge manager in the following locations:
------------------------------------------------------------------------
Refuge Office location
------------------------------------------------------------------------
Alaska Peninsula National Wildlife King Salmon.
Refuge.
Alaska Maritime National Wildlife Homer.
Refuge.
Aleutian Islands Unit, Alaska Maritime Homer.
NWR.
Arctic National Wildlife Refuge........ Fairbanks.
Becharof National Wildlife Refuge...... King Salmon.
[[Page 56506]]
Innoko National Wildlife Refuge........ McGrath.
Izembek National Wildlife Refuge....... Cold Bay.
Kanuti National Wildlife Refuge........ Fairbanks.
Kenai National Wildlife Refuge......... Soldotna.
Kodiak National Wildlife Refuge........ Kodiak.
Koyukuk National Wildlife Refuge....... Galena.
Nowitna National Wildlife Refuge....... Galena.
Selawik National Wildlife Refuge....... Kotzebue.
Tetlin National Wildlife Refuge........ Tok.
Togiak National Wildlife Refuge........ Dillingham.
Yukon Delta National Wildlife Refuge... Bethel.
Yukon Flats National Wildlife Refuge... Fairbanks.
------------------------------------------------------------------------
(2) For noncompetitively issued permits, the applicant may present
the application verbally if he/she is unable to prepare a written
application. The refuge manager will keep a written record of such
verbal application. For competitively issued permits, the applicant
must submit a written application in the format delineated in the
prospectus or other designated format of the Service.
(3) The refuge manager will grant or deny applications for
noncompetitively issued permits in writing within 45 days, except for
good cause. For competitively issued permits, the refuge manager will
grant or deny applications in accordance with the time frame
established in the prospectus, except for good cause.
(4) Application period deadlines for individual refuges may be
established for both competitively and noncompetitively issued permits.
Notification of availability for commercial opportunities and
application deadlines will be sent to existing and/or the previous
year's permittees, published in at least one newspaper of general
circulation in the State and in at least one local newspaper if
available, and made available for broadcast on local radio stations in
a manner reasonably calculated to inform local prospective applicants.
(5) The Service may limit the number of applications that an
individual may submit for competitively awarded offerings.
(e) Competitively awarded permits. (1) Where the number of
available permits is limited, permits will be awarded competitively. A
prospectus with invitation to bid system will be the primary
competitive method used for selecting commercial visitor services.
Where justified, other selection methods, including but not limited to
lotteries, may be used. Such circumstances may include, but not be
limited to, the timely refilling of use areas that have become vacant
during regularly scheduled terms to prevent commercial visitor service
opportunities from going unused, and initiating trial programs on
individual refuges. The refuge manager has discretionary authority to
issue noncompetitive permits on a one-time, short-term basis to
accredited educational institutions and nonprofit, environmental
organizations for activities in use areas where permits are otherwise
limited to competitive award.
(2) Where numbers of permits have been limited for an activity
prior to the promulgation of these regulations and a prospectus with
invitation to bid system has not yet been developed, refuge managers
may issue noncompetitive five-year permits on a one-time basis to
existing permittees.
(3) All solicitations for competition will be publicly noticed in
accordance with paragraph (d)(4) of this section and include reasonable
application periods of not less than 60 days. When competitively
selecting permittees for an activity in a use area where permits for
that activity have not previously been competitively awarded, the
Service will publicly notice the upcoming opportunity a minimum of 18
months prior to the effective date of the permit term.
(4) All prospectuses will identify the selection criteria that the
Service will use to evaluate the proposals. Experience and performance
in providing the same or similar services must be included as a
criterium in all prospectuses involving commercial visitor services. In
evaluating the experience of an applicant, the Service will
specifically consider knowledge of the specific area covered by the
prospectus and the nature of the technical skills required to provide
quality service to the public.
(5) A panel of Service employees who use a scoring process based on
the selection criteria will evaluate and rank applications received in
response to a prospectus.
(6) The Service has discretionary authority to not evaluate or
consider proposals that are incomplete or improperly submitted.
(7) The Service may establish minimum scores to qualify for the
award of permits. If established, these minimum scores will be
identified in the prospectus.
(8) The Service may establish limits on the number of use areas
within an individual refuge, or on refuges statewide, in which a
permittee is authorized to operate. This limit applies to different
corporations in which the same individual has any ownership interests.
(9) When vacancies occur in competitively filled use areas, the
procedure for reissuing the permits will depend on how long it has been
since the permit was originally issued. If a vacancy occurs within the
first 12 months of the permit's effective date, the permit will be
awarded to the next highest ranking interested applicant in the
original solicitation. Resolicited competition for the area will occur
as soon as practicable if:
(i) A vacancy occurs after 12 months of the permits effective date;
and
(ii) At least 24 months of the original permit term is available
for a new permittee after completion of the solicitation, application,
evaluation and awards period. If less than 24 months of the term of the
permit is available, the Service has the discretion to solicit
competition during the regularly scheduled solicitation period. In
areas where historically there has not been significant permittee
interest, a noncompetitively issued permit may be issued on an annual
basis until competition can be solicited in conjunction with other
solicitations for vacant areas.
(10) Terms of permits awarded under the prospectus with invitation
method are valid for 5 years except in those instances where permits
are issued to fill vacancies occurring during a scheduled award cycle.
In these instances, the duration of the permit may be limited to the
expiration date of the original award period. Permits awarded under the
prospectus with invitation method may be noncompetitively renewed by
the refuge manager for a period of 5 additional years upon showing
permittee compliance with all applicable permit terms and conditions
and a satisfactory record of performance. No other extensions or
noncompetitive renewals shall be awarded after one renewal.
(11) Permit privileges may be transferred to other qualified
entities that demonstrate the ability to meet Service standards, as
outlined in the prospectus upon which the existing permit was based,
subject to approval by the refuge manager. Requests for transfers must
be made in writing to the refuge manager. A permittee who transfers
his/her privileges will not be
[[Page 56507]]
eligible to be considered for competitively awarded permits for the
same type of activity on the same national wildlife refuge for a period
of 3 years following the authorized transfer. Transfers may be approved
if all the following criteria are satisfied:
(i) The transfer is part of the sale or disposition of the current
permittee's entire business as earlier defined;
(ii) The current permittee was: either conducting the commercial
activity in the area prior to establishment of the refuge; conducting
the commercial operation in the refuge under authorization of a permit
for a minimum of 15 years; or owns significant real property in the
area, the value of which is dependent on holding a refuge permit.
Consideration of the last element will include, but not be limited to:
(A) The relationship of the real property to permitted refuge
activities as documented in the operations plan;
(B) The percentage that the authorized refuge activities comprise
of the total commercial use associated with the real property; and
(C) The appraised value of the real property.
(iii) The transferee is independently qualified to hold the permit
under the standards of the prospectus of the original existing permit.
(iv) The transferee has an acceptable history of compliance with
fish and wildlife and related permit regulations during the past 5
years. An individual with any felony conviction is considered an
ineligible transferee. Transfer approval to an individual having any
fish and wildlife related misdemeanor violation will be discretionary.
Denial will be based on, but not limited to, whether the individual
committed any violation in which the case disposition resulted in any
of the following:
(A) Any jail time served;
(B) Any civil penalty or criminal fine of $250 or greater;
(C) Forfeiture of equipment or harvested animal (or parts thereof)
valued at $250 or greater;
(D) Suspension of privileges or revocation of any fish and wildlife
related license/permits;
(E) Other alternative sentencing that indicates the penalty is of
equal severity to the foregoing elements; or
(F) Any multiple misdemeanor violations.
(12) The transferee shall follow the operations plan of the
original permittee. The transferee's operations plan may be modified
with the written consent of the refuge manager as long as the change
does not result in increased adverse impacts to refuge resources or
other refuge users.
(13) Upon timely approval of the transfer, the Service will issue
the new permittee a permit for the remaining portion of the original
permit term. The refuge manager retains the right to restrict, suspend,
revoke, or not renew the permit for failure to comply with its terms
and conditions.
(14) Privileges of permits issued under this paragraph (e) may be
transferred, subject to regional director approval, to a former spouse
when a court awards permit-associated business assets in a divorce
settlement agreement to that person. The recipient must be
independently qualified to hold the permit under the minimum standards
identified by the Service when the permit was originally issued and has
an acceptable history of compliance as set forth in paragraph
(e)(11)(iv) of this section.
(15) Privileges of permits issued under this paragraph (e) may be
transferred in the case of death or disability of the permittee,
subject to regional director approval, as provided in this paragraph
(e). In these cases, the permit privileges may pass to a person who was
a business partner when the permit was issued, a spouse, or an
immediate family member who is independently qualified to hold the
permit under the minimum standards identified by the Service when the
permit was originally issued, and has an acceptable history of
compliance as set forth in paragraph (e)(11)(iv) of this section.
(16) Upon [the effective date of the final regulations], refuge
managers shall amend existing competitively-awarded permits through the
prospectus method to make the terms fully consistent with this section,
including eligibility for a 5-year noncompetitive renewal. Managers
must be careful not to break existing legal contracts.
(f) Fees. Permittees must pay fees formally established by regional
and/or nation-wide Service policy. Any fee exemption must be documented
by the refuge manager.
(g) Subletting and subcontracting. A permittee may not sublet any
part of an authorized use area. Written approval from the refuge
manager to subcontract any service authorized by the permit is required
unless the subcontracted service is specifically identified in the
permittee's approved operations plan.
(h) Restriction, suspension and revocation of permits. A permit may
at any time be suspended, revoked, or its terms may be reasonably
restricted for noncompliance with the terms and conditions thereof, or
the regulations in, this subchapter C: for nonuse; for violation of any
law, regulation or order applicable to the refuge; to protect public
health or safety; or if the refuge manager determines the use to be
incompatible with refuge purposes or is inconsistent with the Service's
obligations under Title VIII of the Alaska National Interest Lands
Conservation Act.
(i) Appeals. (1) Any person adversely affected by a refuge
manager's decision or order relating to the person's permit, or
application for a permit, has the right to have the decision or order
reviewed by the regional director. This section does not apply to
permits or applications for rights-of-way. See 50 CFR 29.22 for the
hearing and appeals procedure on rights-of-way.
(2) Prior to making any adverse decision or order on a permit or
application, the refuge manager will notify the permittee or applicant,
verbally or in writing, of the proposed action and its effective date.
The permittee or applicant of noncompetitively issued permits shall
have 45 calendar days after notification in which to present to the
refuge manager, orally or in writing, a statement in opposition to the
proposed action or effective date. A holder of a valid permit shall be
notified in writing, within 10 calendar days after receipt of the
statement in opposition of the refuge manager's final decision or
order. An applicant for a permit shall be notified in writing within 30
calendar days after receipt of the statement in opposition, of the
refuge manager's final decision or order. Applicants, who wish to
appeal permit awards made by competitive selection must appeal the
refuge manager's decision directly to the regional director within the
time period provided for in paragraph (i)(3) of this section.
(3) The permittee or applicant shall have 45 calendar days from the
postmarked date of the refuge manager's final decision or order in
which to file a written appeal to the regional director. In appeals
involving applicants who were not selected during a competitive
selection process, the selected applicant concurrently will be afforded
the opportunity to provide information to the regional director before
a final decision is made. For purposes of reconsideration, appellants
shall present the following information:
(i) Any statement or documentation, in addition to that included in
the initial application, permit or competitive prospectus, which
demonstrates that the appellant satisfies the criteria set forth in the
document
[[Page 56508]]
under which the permit application/award was made;
(ii) The basis for the permit applicant's disagreement with the
decision or order being appealed; and
(iii) Whether or not the permit applicant requests an informal
hearing before the regional director.
(4) The regional director will provide a hearing if requested by
the applicant. After consideration of the written materials and oral
hearing, and within a reasonable time, the regional director shall
affirm, reverse, or modify the refuge manager's decision or order and
shall set forth in writing the basis for the decision. A copy of the
decision must promptly be forwarded to the applicant and will
constitute final agency action.
(5) Compliance with any decision or order of a Refuge Manager must
not be suspended if an appeal has been taken unless such suspension is
authorized in writing by the Regional Director, and then only upon a
determination that such suspension is not detrimental to the interests
of the United States or upon submission and acceptance of a bond deemed
adequate to indemnify the United States from loss or damage.
(j) State selection of guide-outfitters. Nothing in this section
will prohibit the Service from cooperating with the State of Alaska in
administering the selection of sport fishing guides and big game
hunting guide-outfitters operating on national wildlife refuges should
the State develop a competitive selection process which is acceptable
to the Service.
Dated: September 24, 1996.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 96-28105 Filed 10-31-96; 8:45 am]
BILLING CODE 4310-55-P
