[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]


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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.

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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