45336 Federal Register / Vol. 62, No. 166 / Wednesday, August 27, 1997 / Rules and Regulations

8Amtrak also states that the Senate Committee on

Commerce, Science, and Transportation recently

approved the Amtrak Reform and Accountability

Act of 1997, which would repeal all the provisions

of the Rail Passenger Service Act concerning

Amtrak Commuter.

9 ‘‘When a statute has been repealed, the

regulations based on that statute automatically lose

their vitality. Regulations do not maintain an

independent life, defeating the statutory change.’’

Aerolineas Argentinas v. U.S., 77 F.3d 1564, 1575

(Fed. Cir. 1996).

10APTA states that it has over 1000 members,

including local mass transit systems, suppliers and

manufacturers, and transit industry consultants.

Position of the Parties

Amtrak filed comments stating that it

did not object to the removal of the part

1157 regulations. Amtrak submits that

the subpart A regulations did affect it

when Conrail was operating commuter

services because many of these services

occurred over rail lines owned by

Amtrak, but that, because Conrail has

not provided the continued commuter

services since 1983, the subpart A

regulations no longer control the

compensation Amtrak receives for

services provided by others over lines

Amtrak owns.

Amtrak also submits that the subpart

A regulations were to have been used to

determine the subsidies for Amtrak

Commuter when it took over the

continued commuter services from

Conrail on January 1, 1983. It notes,

however, that Amtrak Commuter has

never conducted any operations because

all the commuter authorities chose to

operate the continued commuter

services themselves or to contract with

an entity other than Amtrak Commuter

to do so. For the same reason, Amtrak

also maintains that it is unnecessary to

retain the subpart B regulations.8

The American Public Transit

Association (APTA) supports the

removal of the part 1157 regulations.

APTA states that it is a private,

nonprofit trade association representing

the North American transit industry.

Included in its membership are about

400 American public and private mass

transit systems that, according to APTA,

carry over 95 percent of those using

public transit in this country.

The Brotherhood of Locomotive

Engineers (BLE) argues that the

regulations should not be modified or

removed unless there is a need shown

for the change, and that such a need was

not shown in the June NPR. BLE states

that it has not participated in subsidy

matters, but indicates that it could

become involved in the future. It asserts

that ‘‘it is important that [subpart] B of

the regulations, governing notice to the

public, be maintained.’’

Discussion and Conclusions

We will remove the regulations in

part 1157, in light of the statutory

changes made by the ICCTA, because

the regulations have no applicability to

current commuter transportation.

We have noted the changes in the

ICCTA affecting the part 1157

regulations. The RSPO statutes, 49

U.S.C. 10361–64, were repealed. The

ICCTA, moreover, eliminated from

section 744(e) references to subsidy

standards set by RSPO. Finally, under

49 U.S.C. 10501(c)(2), the ICCTA

broadened the exemption from

jurisdiction of mass transportation

provided by a local governmental

authority.

The ICCTA, however, did not remove

all statutory references to the RSPO. 49

U.S.C. 24505(b)(2) and 24505(e)(2) still

allow RSPO to update the subsidy

regulations and require it to prescribe

the notice of discontinuance

regulations, respectively. We do not

know whether the retention of these

references to an eliminated office was

intentional or not. Therefore, in our

June NPR, we asked whether the

regulations had validity independent of

the existence of RSPO and the

jurisdiction of the Board. In response,

Amtrak and APTA, commenters with a

direct interest in the regulations, do not

object to their removal. Amtrak states

that Amtrak Commuter has never

conducted operations. Thus, currently,

and indeed since January 1, 1983, there

have been no operations to be

subsidized or to discontinue.

Accordingly, a need for the rules would

only arise if Amtrak Commuter were to

begin operations, which it gives no

indication of doing. Indeed, in its

comments, Amtrak refers to the possible

repeal of the Amtrak Commuter

provisions of the Rail Passenger Service

Act.

In such a situation, we believe that

removing the regulations is appropriate.

We do not believe that Congress

intended that we should retain

regulations whose statutory basis has in

large measure been eliminated,9 and

whose operational basis is currently

nonexistent. Maintaining more than 20

pages of unneeded regulations incurs

administrative expense and causes

public confusion.

BLE has not given us a positive reason

to maintain these regulations. It argues

that the rules should not be eliminated

‘‘unless there is a demonstrated need for

removal.’’ As we have indicated, the

elimination of the statutes and the lack

of operations by Amtrak Commuter are

sufficient reason. Concerning the

subpart B rules, BLE states, without

further elaboration, that they ‘‘govern[]

notice to the public.’’ This is true, but

there are no operations to give

discontinuance notice of, and nobody

claiming to be a passenger or

representing one has objected.

The Board concludes that the removal

of part 1157 would not have a

significant effect on a substantial

number of small entities. Currently,

there are no commuter operations to

which the part 1157 rules apply. APTA

was the only party commenting on this

issue in response to the June NPR.10 It

‘‘concurs in the Board’s judgment that

the removal of the regulations will not

have any adverse consequences on

small entities and will lessen burdens

on passenger rail carriers.’’

This action will not significantly

affect either the quality of the human

environment or the conservation of

energy resources.

List of Subjects in 49 CFR Part 1157

Railroads, Reporting and

recordkeeping requirements, Uniform

System of Accounts.

Decided: August 18, 1997.

By the Board, Chairman Morgan and Vice

Chairman Owen.

Vernon A. Williams,

Secretary.

PART 1157—[REMOVED]

For the reasons set forth in the

preamble and under the authority of 49

U.S.C. 721(a), title 49, chapter X of the

Code of Federal Regulations is amended

by removing part 1157.

[FR Doc. 97–22810 Filed 8–26–97; 8:45 am]

BILLING CODE 4915–00–P

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
Federal Register / Vol. 62, No. 166 / Wednesday, August 27, 1997 / Rules and Regulations 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 guideoutfitters 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
45338 Federal Register / Vol. 62, No. 166 / Wednesday, August 27, 1997 / Rules and Regulations

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 guideoutfitter permits nor any of the other

refuge-specific, competitively awarded

permits. In a recent lawsuit concerning

implementation of the big game guideoutfitter 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 longterm 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 onetime, 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
Federal Register / Vol. 62, No. 166 / Wednesday, August 27, 1997 / Rules and Regulations 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
45340 Federal Register / Vol. 62, No. 166 / Wednesday, August 27, 1997 / Rules and Regulations

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 § 36.3 Information

Collection to read as follows:

§ 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:

§ 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
Federal Register / Vol. 62, No. 166 / Wednesday, August 27, 1997 / Rules and Regulations 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 § 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 Refuge.

King Salmon.

Alaska Maritime National

Wildlife Refuge.

Homer.

Aleutian Islands Unit, Alaska

Maritime NWR.

Homer.

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.

Refuge Office location

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
45342 Federal Register / Vol. 62, No. 166 / Wednesday, August 27, 1997 / Rules and Regulations

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 wildliferelated 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
Federal Register / Vol. 62, No. 166 / Wednesday, August 27, 1997 / Rules and Regulations 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 noncompetitive 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