[Federal Register Volume 62, Number 166 (Wednesday, August 27, 1997)]
[Rules and Regulations]
[Pages 45336-45343]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-22827]
=======================================================================
-----------------------------------------------------------------------
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: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule clarifies, updates, and adds to existing regulations
for the administration of all special use permits (permits) on national
wildlife refuges (refuges) in Alaska. These regulations provide the
U.S. Fish and Wildlife Service (Service) with the necessary regulatory
authority to administer the recent changes in the refuges' commercial
visitor service programs and
[[Page 45337]]
to ensure proper and uniform management of all permits on refuges in
Alaska.
EFFECTIVE DATE: This rule is effective September 26, 1997.
ADDRESSES: U.S. Fish and Wildlife Service, Attention: Daryle R. Lons,
1011 E. Tudor Rd., Anchorage, AK 99503.
FOR FURTHER INFORMATION CONTACT: Daryle R. Lons at the above address,
telephone (907) 786-3354.
SUPPLEMENTARY INFORMATION:
Background
In the November 1, 1996, issue of the Federal Register (61 FR
56502-56508) the Service published the proposed rulemaking and invited
public comment.
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 original regulations governing issuance of permits on units
of the National Wildlife Refuge System in Alaska, codified at 50 CFR
36.41, were published in the Federal Register in 1981 (46 FR 31827,
June 17, 1981, as corrected at 46 FR 40194, August 7, 1981) and were
amended in 1986 (51 FR 44793, December 12, 1986). Since then, the
permit administration program on refuges in Alaska continued to evolve
and grow in both size and complexity. Although the Service issues
special use permits 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 and
transporters.
The primary purpose of these 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 62 FR
1838, January 14, 1997) were promulgated separately from this
rulemaking. The 1307 regulations established 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 supplement these regulations.
Since the Service promulgated the original regulations, 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, the Service implemented an interim program in
June 1992. Following this process, requests for proposals were
solicited and the Service notified applicants of selections in January
1993. The Service awarded successful applicants 5-year permits
effective July 1, 1993. These 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 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 implementation
of a competitive selection process.
The existing system also needed modification 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. Also, the Service revised the
policy 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 negative
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 that 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 the
reissuance of existing competitively awarded permits consistent with
the policy. Congress supported a return to the earlier policy by
including language in a conference report (H.R. Conference Report No.
402, 104th Congress, 1st Session 1995) 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 regulations. To meet the intent of the directive,
these 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
[[Page 45338]]
amount of time and money and built their lives around a business which
is dependent upon receiving a permit.
These 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 original regulations did 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 Service's
commitment to developing regulations addressing administration of the
program influenced the U.S. District Court in 1994 to find in favor of
the Service.
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 public.
Analysis of Public Comments and Changes Made to the Proposed Rule
The Fish and Wildlife Service conducted public meetings in
Anchorage and Fairbanks, Alaska to provide information about the
proposed rule and to receive public testimony. Members of the public
made only 3 official oral comments at these meetings. However, the
Service received 41 letters providing written comments on the proposed
rule. Of these, 33 were from individuals/commercial visitor service
businesses, 4 from special interest groups, 2 from the State of Alaska,
and 2 from members of the Alaska Congressional delegation.
The following is a section-by-section analysis of all substantive
changes that the Service made in the final rule in response to public
comment.
Section 36.41(b) Definitions
In response to seven comments, the definition of ``entire
business'' was modified slightly to better define what assets to
include in the term. A definition for the term ``immediate family''
also was added.
Section 36.41(e)(1) Refers to: Competitively Awarded Permits--
(Exception for Environmental Education Related Activities)
This paragraph provides the Refuge Manager with discretionary
authority to issue noncompetitive permits on a one-time, short-term
basis for environmental education-related activities that also are
recreational in nature in use areas where permits of that type of
guided recreational activity are otherwise limited to competitive
award. In response to two public comments, the amended language
clarifies the intent of the proposed language and provides the
flexibility needed for organizations such as scouting groups to be
eligible to receive such a permit.
Section 36.41(e)(2) Refers to: Exception for Historically Limited
Numbers of Current Permittees
In response to one comment, the language, ``consistent with the
terms set forth in paragraph (e)(16)'' was added to this provision to
clarify the intent of the proposed language. The added language makes
it clear that the terms of the affected permittees' permits are
consistent with competitively issued permits awarded by the prospectus
with invitation to bid method.
Section 36.41(e)(10) Refers to: Terms of Permits
In response to 22 comments, the Service changed the term ``may'' to
``must'' with respect to permits being noncompetitively renewed for an
additional 5 years upon a showing that the permittee complied with all
applicable permit terms and conditions and had a satisfactory record of
performance. The commenters expressed concerns that the proposed
language would allow Refuge Managers to arbitrarily decide not to renew
the permits even if the permittee met the specified conditions. The
intent of the Service, pursuant to the 1992 policy, is to automatically
renew such permits provided all of the specified conditions are met.
The inclusion of ``must'' in the final rule clarifies the intent of the
Service's implementation of this provision. To clarify the
administrative requirements for renewing permits, the revised language
also includes the requirement that permittees complete an application
to receive the 5 year renewal.
Section 36.41(e)(11) Refers to: Transfer of Permits
The Service made several changes in response to seven comments
concerning various elements of the transfer provisions. The comments
primarily expressed two themes: the 15-year requirement for permittees
to hold a permit before being eligible to transfer the privilege is too
long, and opposition to the requirement that a permittee must sell
their entire business in order to be eligible to transfer their permit
privileges. There were also two comments that recommended the Service
to add language that would provide the Service with more latitude in
allowing transfers based upon the specific facts of each potential case
that could arise.
The Service added language, in response to the comments, that
provides it with the latitude to approve transfers that will benefit
the government in addition to the previously allowed transfers
delineated in the proposed regulations. The Service also added language
that clarifies that it has complete discretion in determining if
transfers will be allowed.
The proposed rule would have required a permittee to hold a permit
for 15 years before being eligible to transfer the permit's privilege.
This requirement is reduced to 12 years in the final rule. Although the
final rule generally requires that a permittee's entire business be
sold as a requirement for transfer eligibility, the Service revised the
definition of ``entire business,'' as noted previously, to more clearly
define included assets. After reevaluating the language of this
section, the Service also amended the language to better define what
types of violations, convictions and/or penalties would be applicable
for evaluating the history of compliance for potential transferees. The
Service also may now base denial of transfers upon a sentence of
probation.
Section 36.41(e)(14) Refers to: Transfer of Permits to Former Spouses
After reevaluating the language of this and the following section,
36.41(e)(15), the Service revised the language in these sections to
make the refuge manager the approving authority for transfers instead
of the regional director. This revision makes the approving authority
consistent with that of Section 35.41(e)(11).
Section 36.41(e)(15) Refers to: Right of Survivorship
In response to one comment, the Service revised language in the
final rule to broaden the eligibility of spouses to retain the permit
privilege in the event of death or disability of the permittee. The
Service recognizes although it is the responsibility of the permittee
to conduct or oversee the actual guiding or other commercial activity
on the refuge, it is common
[[Page 45339]]
practice for the spouse of the permittee to actually have much of the
responsibility for many of the administrative parts of the business.
The revised language requires an actively involved spouse in the
business who may not have all the required certifications (e.g., big
game guiding license) to demonstrate only that they are capable of
continuing to provide the authorized services instead of having
independently been qualified in order to be eligible to retain the
permit privilege. This distinction allows eligible spouses to continue
to manage the business and hire an employee, who independently is
qualified with all the proper licenses, to conduct the authorized
activities for the remaining term of the permit. The revised language
retains the requirement that business partners and other immediate
family members have to qualify independently to hold the permit in
order for the privilege to pass to them.
Section 36.41(h) Refers to: Restriction, suspension and revocation of
permits
The Service received four comments concerning this paragraph. The
comments generally questioned the validity of the reasons for permit
suspension, restriction or revocation, and expressed concerns that the
proposed language would allow Refuge Managers to make arbitrary
decisions without ``due process.'' As stated in Section 36.41(i), any
person who is adversely affected by a Refuge Manager's decision
relating to that person's permit has appeal rights to the Regional
Director. In response to the commenters' ``due process'' concerns, the
Service added language that references the permittee's right to appeal
in section 36.41(i).
After reevaluating the language of this section in response to
public comments, the Service also amended the language to better define
what types of violations/convictions would be applicable.
The following is a section-by-section summary of other substantive
comments that the Service received but that did not result in changes
being made in the final rule.
Section 36.41(e)(1) Refers to: Lotteries
The Service received eight comments that opposed the use of
lotteries as a selection method. All of the commenters felt this
selection mechanism is unfair. As stated in the proposed regulations,
the prospectus with invitation to bid system will be the primary method
used to select commercial visitor services. The Service will use
lotteries or other selection methods only where justified and under
very limited circumstances such as providing guiding opportunities in
areas that would otherwise go unused. The Service believes having the
discretion to use alternative selection methods in isolated cases is in
the best interest of the public and therefore retained the proposed
language in the final rule.
Section 36.41(e)(2) Refers to: Exception for historically limited
numbers of current permittees
Two commenters supported and two commenters opposed the inclusion
of this paragraph that allows Refuge Managers to issue permits
noncompetitively on a one-time basis where the numbers of permits have
been limited for an activity prior to the promulgation of these
regulations and a prospectus system is not yet developed.
The Service retained this paragraph to comply with the intent of
Congressional directive in H.R. Conference Report No. 402, 104th
Congress, 1st Session (1995), and to support the interests of existing
permittees who in the past typically made significant investments based
on their prior understanding that they would continue to receive
annually issued permits as long as they met the terms of their permits
and provided a good service. This provision will provide these
permittees with adequate time to prepare for having to compete as well
as giving many of them the opportunity to recoup some of their
investments by selling their businesses and transferring their permit
privileges.
Section 36.41(e)(4) Refers to: Selection Criteria
The Service received four comments concerning selection criteria.
Two of the comments supported adding the language ``experience and
performance in providing the same or similar services shall account for
no less than 20 percent of the maximum points available under any
prospectus.'' One commenter opposed considering the knowledge of the
specific area when evaluating proposals and one commenter recommended
clarifying what the term ``specific area'' meant.
Although experience accounts for more than 20 percent in current
policy for selecting sport fish and big game hunting guides, the
Service does not believe it is appropriate or necessary to include a
specific figure since the regulations cover all types of competitive
activities and a fixed percentage may not be appropriate in all cases.
The Service believes that it is appropriate to consider knowledge of
the specific area when evaluating proposals. The Service also feels
that the proposed language, ``knowledge of the specific area covered by
the prospectus'', is sufficiently clear and did not need revising.
Section 36.41(e)(7) Refers to: Minimum Scores
One commenter opposed the Service having the discretion to
establish minimum scores for certain competitively-awarded permits. The
Service retained this provision because it believes it is in the best
interest of refuge resources and guided refuge visitors to be able to
establish defined levels of competency above minimum qualification
levels for certain types of guided activities in some locations.
Section 36.41(e)(11)(ii) Refers to: Renewal of Existing Permits
Although most commenters supported the renewal of existing permits
without competition, three commenters opposed this. The Service
retained this provision in response to the Congressional directive
received in H.R. Conference Report No. 402, 104th Congress, 1st Session
(1995) and the overall support demonstrated by the public comments that
the Service received.
Section 36.41(i) Refers to Appeals
One commenter recommended that appeals concerning competitive
selection should be handled by the evaluation panel and not the
Regional Director. Another commenter recommended keeping the 180-day
appeal period instead of the proposed 45-day appeal period.
The Service believes it is in the best interest of appellants to
retain the provision that the Regional Director has the responsibility
to hear and decide on all appeals. The proposed change in length of the
appeal period from 180 to 45 days was one of the specific items that
the Service requested comments on in the advance notice to the proposed
regulations. The majority of comments supported the change because the
180-day appeal period places selected applicants of competitive awards
in a position of not being able to make necessary preparations and
commitments for an unnecessarily long period of time. The Service
believes it is in the best interest of most permit applicants and
guided refuge visitors to reduce the appeal period from 180 to 45 days.
Other Comments
The Service received a number of other comments. Some were very
general, such as two commenters opposing the entire rule from being
promulgated and another commenter recommending that the Service should
[[Page 45340]]
consider cumulative impacts of all special use permits on Alaska
refuges. Many of the other comments were more relevant to upcoming
policy issues rather than the rule itself. Examples include: several
comments recommending revision of existing selection criteria, several
comments recommending that the Service provide additional regulatory or
policy provisions which would essentially create a ``Bill of Rights''
for permittees, and several comments recommending that performance
incentives be established for existing permittees. The Service will
give due consideration to these comments during future policy
revisions.
Paperwork Reduction Act
As required by the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), the information collections contained in this rule have been
approved by the Office of Management and Budget (OMB) under clearance
number 1018-0014, with an expiration date of August 31, 2000.
This collection of information will be achieved through the use of
USFWS application form 3-2001, in conjunction with the provisions of
this rule. The information collection requirements needed for the
proper use and management of 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 eligible and/or is the most qualified applicant 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 most common respondents to this collection of information will
be commercial visitor service operators 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. The
public reporting burden for this collection of information is estimated
to average 1.5 hours each for 150 non-competitively awarded permits and
31.66 hours each for 60 competively awarded permits 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 annual number of respondents
is 210, yielding a total annual reporting and record keeping burden of
2125 hours.
Comments and suggestions on the burden estimate or any other aspect
of the form should be sent directly to the Office of Information and
Regulatory Affairs; Office of Management and Budget; Attention:
Interior Desk Officer; Washington, DC 20503; and a copy of the comments
should be sent to the Information Collection Clearance Officer, U.S.
Fish and Wildlife Service, MS 224-ARLSQ; 1849 C Street, NW.,
Washington, DC 20240.
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 rulemaking would not have a significant effect on a
substantial number of small entities, which include businesses,
organizations, or governmental jurisdictions. The Service issues
approximately 200 permits. The 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, the Service amends Part 36 of Chapter I of Title 50 of
the Code of Federal Regulations as follows:
PART 36--[AMENDED]
1. The authority citation for Part 36 continues to read as follows:
Authority: 16 U.S.C. 460(k) et seq., 668dd et seq., 742(a) et
seq., 3101 et seq., and 44 U.S.C. 3501 et seq.
2. Revise Sec. 36.3 Information Collection to read as follows:
Sec. 36.3 Information collection.
The information collection requirements contained in this part have
been approved by the Office of Management and Budget under 44 U.S.C. et
seq. and assigned clearance number 1018-0014. The collected information
will assist the Service in administering these programs and,
particularly, in the issuance of permits and the granting of statutory
or administrative benefits. The information requested in the
application form is required to obtain a benefit. The public reporting
burden for this collection of information is estimated to average 1.5
hours each for 150 non-competitively awarded permits and 31.66 hours
each for 60 competitively awarded permits 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 annual number of respondents is 210,
yielding a total annual reporting and record keeping burden of 2125
hours. Comments and suggestions on the burden estimate or any other
aspect of the form should be sent directly to the Office of Information
and Regulatory Affairs; Office of Management and Budget; Attention:
Interior Desk Officer; Washington, DC 20503; and a copy of the comments
should be sent to the Information Collection Clearance Officer, U.S.
Fish and Wildlife Service, MS 224-ARLSQ; 1849 C Street, NW.,
Washington, DC 20240.
3. 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
[[Page 45341]]
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 means any service or activity made
available for a fee, commission, brokerage or other compensation to
persons who visit a refuge, including such services as providing food,
accommodations, transportation, tours, and guides. 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 means all assets including, but not limited to,
equipment, facilities, and other holdings directly 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 specific 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;
Immediate family means the spouse and children, either by birth or
adoption, of the permittee.
Operations plan means a narrative description of the commercial
operations which contains all required information identified in the
prospectus;
Permit means 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 means the document that the Service uses in soliciting
competition to award commercial visitor services on a refuge;
Subcontracting means 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 means 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 means the designated area where commercial services may be
conducted by the permittee.
(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, request permits from the
respective refuge manager in the following locations:
------------------------------------------------------------------------
Refuge Office location
------------------------------------------------------------------------
Alaska Peninsula National Wildlife King Salmon.
Refuge.
Alaska Maritime National Wildlife Refuge Homer.
Aleutian Islands Unit, Alaska Maritime Homer.
NWR.
Arctic National Wildlife Refuge......... Fairbanks.
Becharof National Wildlife Refuge....... King Salmon.
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) Refuge managers may establish application period deadlines for
individual refuges for both competitively and noncompetitively issued
permits. The refuge manager will send notification of availability for
commercial opportunities and application deadlines to existing and/or
the previous year's permittees. He/she will publish the notice in at
least one newspaper of general circulation in the State and in at least
one local newspaper if available, and will make 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, refuge managers will award permits
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 other nonprofit organizations
to conduct primarily environmental
[[Page 45342]]
education-related activities that also may be recreational in nature in
use areas where permits for that type of guided recreational activity
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 consistent with the terms
set forth in paragraph (e)(16) of this section on a one-time basis to
existing permittees.
(3) The Service will publish notice of all solicitations for
competition 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 were not previously competitively awarded,
the Service will publish notice of 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. All prospectuses involving
commercial visitor services must include experience and performance in
providing the same or similar services as a criterion. 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 originally was issued. The Service will award the
permit to the next highest ranking interested applicant in the original
solicitation, if a vacancy occurs within the first 12 months of the
permit's effective date. Resolicited competition for the area will
occur as soon as practicable if:
(i) A vacancy occurs after 12 months of the permit's 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. The
Service may annually issue noncompetitive permits for vacant areas,
where there has not been significant permittee interest, 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 the
Service issues permits to fill vacancies occurring during a scheduled
award cycle. In these instances, the permit duration is limited to the
expiration date of the original award period. Permits awarded under the
prospectus by invitation method must be renewed noncompetitively by the
refuge manager for a period of 5 additional years upon application and
a showing of permittee compliance with all applicable permit terms and
conditions and a satisfactory record of performance. After one renewal,
the Service shall not extend or noncompetitively renew another permit.
(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 eligible to be considered for
competitively awarded permits for the same type of activity on the same
national wildlife refuge for a period of three years following the
authorized transfer. The Service retains complete discretion in
allowing transfers. In general, the Service approves transfers only
upon demonstrating that it is to the government's benefit and 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
operation in the refuge under authorization of a permit for a minimum
of 12 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 is not 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 must be 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
State and Federal fish and wildlife and related permit regulations
during the past 5 years. An individual with any felony conviction is an
ineligible transferee. Transfer approval to an individual having any
violations, convictions, or pleas of nolo contendere for fish and
wildlife related federal misdemeanors or State violations will be
discretionary. Denial is 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 or probation;
(B) Any 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 convictions or pleas of nolo contendere for fish
and wildlife-related Federal misdemeanors or State fish and wildlife-
related violations or misdemeanors irrespective of the amount of the
fine.
(12) The transferee must follow the operations plan of the original
permittee. The transferee may modify the operations plan 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
[[Page 45343]]
the permit for failure to comply with its terms and conditions.
(14) Permit privileges issued under this paragraph (e) may be
transferred, subject to refuge manager approval, to a former spouse
when a court awards permit-associated business assets in a divorce
settlement agreement to that person. The recipient must independently
qualify to hold the originally issued permit under the minimum
standards identified by the Service, and the permittee must have an
acceptable history of compliance as set forth in paragraph (e)(11)(iv)
of this section.
(15) Permit privileges issued under this paragraph (e) may be
transferred in the case of death or disability of the permittee,
subject to refuge manager approval, as provided in this paragraph (e).
In these cases, the permit privileges may pass to a spouse who can
demonstrate he/she is capable of providing the authorized services and
who has an acceptable history of compliance as set forth in paragraph
(e)(11)(iv) of this section. A spouse who lacks any required license(s)
but otherwise qualifies may hire an employee, who holds the required
license(s) and who has an acceptable history of compliance as set forth
in paragraph (e)(11)(iv) of this section, to assist in the operation.
Permit privileges may also pass to another member of the immediate
family or a person who was a business partner at the time of original
permit issuance. This person must be independently qualified under the
minimum standards identified by the Service at the time of original
permit issuance and have an acceptable history of compliance as set
forth in paragraph (e)(11)(iv) of this section.
(16) Upon September 26, 1997, refuge managers will amend existing
competitively-awarded permits through the prospectus method to make the
terms fully consistent with this section, including eligibility for a
5-year non-competitive renewal.
(f) Fees. Permittees must pay fees formally established by regional
and/or nation-wide Service policy. The refuge manager must document any
fee exemption.
(g) Subletting and subcontracting. A permittee may not sublet any
part of an authorized use area. Subcontracting any service authorized
by the permit requires written approval from the refuge manager unless
the subcontracted service is specifically identified in the permittee's
approved operations plan.
(h) Restriction, suspension and revocation of permits. The refuge
manager may suspend, revoke, or reasonably restrict the terms of a
permit for noncompliance with the terms and conditions of the
regulations in this subchapter C; for nonuse of the permit; for
violations/convictions (including pleas of nolo contendere) of any law
or regulation pertaining to the same type of activity authorized by the
permit, whether or not the activity occurred on or off 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. All actions pertaining to this
paragraph are subject to the appeal process as set forth in paragraph
(i) of this section.
(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 any permit or
an application for a noncompetitively issued permit, the refuge manager
will notify the permittee or applicant, verbally or in writing, of the
proposed action and its effective date. A 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. Notification in writing to a valid permit holder shall occur
within 10 calendar days after receipt of the statement in opposition to
the refuge manager's final decision or order. An applicant for a
noncompetitively issued 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. An applicant for a
competitively issued permit who is not selected will not receive
advance notice of the award decision. Such applicants, who wish to
appeal the decision must appeal 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 have the
opportunity to provide information to the regional director prior to
the final decision. Selected applicants who choose to take advantage of
this opportunity, will retain their right of appeal should the appeal
of the unsuccessful applicant result in reversal or revision of the
original decision. 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 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. The applicant
must be sent a copy of the decision promptly. The decision will
constitute final agency action.
(5) Permittee compliance with any decision or order of a refuge
manager shall be required during the appeal process unless the regional
director makes a preliminary finding contrary to the refuge manager's
decision, and prepares a written determination that such action is not
detrimental to the interests of the United States, or upon submission
and acceptance of a bond deemed adequate by the refuge manager 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: August 22, 1997.
Donald J. Barry,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 97-22827 Filed 8-26-97; 8:45 am]
BILLING CODE 4310-55-P
