1838 Federal Register / Vol. 62, No. 9 / Tuesday, January 14, 1997 / Rules and Regulations

112(i)(3)(B) of the Act, as discussed in

paragraph § 63.182(a)(6) of subpart H.

* * * * *

(2) Compliance with the compressor

provisions of § 63.164 of subpart H shall

occur no later than March 5, 1998, for

any compressor meeting all the criteria

in paragraphs (d)(2)(i) through (d)(2)(iv)

of this section.

* * * * *

(iv) The owner or operator submits

the request for a compliance extension

to the U.S. Environmental Protection

Agency (EPA) Regional Office at the

addresses listed in § 63.13 of subpart A

no later than June 16, 1997. The request

for a compliance extension shall contain

the information specified in

§ 63.6(i)(6)(i)(A), (B), and (D) of subpart

A. Unless the EPA Regional Office

objects to the request for a compliance

extension within 30 calendar days after

receipt of the request, the request shall

be deemed approved.

* * * * *

(6) Compliance with the heat

exchange system provisions of § 63.104

of subpart F, as required in § 63.502(f),

shall occur no later than September 5,

1999.

* * * * *

Subpart JJJ—National Emission

Standards for Hazardous Air Pollutant

Emissions: Group IV Polymers and

Resins

3. Section 63.1311 is amended by

revising paragraphs (d) introductory

text, (d)(2) introductory text, and

(d)(2)(ii) to read as follows:

§ 63.1311 Compliance schedule and

relationship to existing applicable rules.

* * * * *

(d) Except as provided for in

paragraphs (d)(1) through (d)(5) of this

section, existing affected sources shall

be in compliance with § 63.1331 no later

than July 31, 1997, unless an extension

has been granted pursuant to section

112(i)(3)(B) of the Act, as discussed in

§ 63.182(a)(6).

* * * * *

(2) Compliance with the compressor

provisions of § 63.164 shall occur no

later than March 12, 1998, for any

compressor meeting all the criteria in

paragraphs (d)(2)(i) through (d)(2)(ii) of

this section.

* * * * *

(ii) The owner or operator submits the

request for a compliance extension to

the U.S. Environmental Protection

Agency (EPA) Regional Office at the

addresses listed in § 63.13 no later than

June 16, 1997. The request for a

compliance extension shall contain the

information specified in § 63.6(i)(6)(i)

(A), (B), and (D). Unless the EPA

Regional Office objects to the request for

a compliance extension within 30

calendar days after receipt of the

request, the request shall be deemed

approved.

* * * * *

[FR Doc. 97–988 Filed 1–13–97; 8:45 am]

BILLING CODE 6560–50–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 36

RIN 1018–AC02

Visitor Service Authorizations on

Alaska National Wildlife Refuges

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Final rule.

SUMMARY: The Fish and Wildlife Service

(Service) adopts regulations to

implement Section 1307 of the Alaska

National Interest Lands Conservation

Act of 1980 (ANILCA). This action is

necessary to establish the 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 National

Wildlife Refuge System lands in Alaska.

This rulemaking provides guidance in

the solicitation, award and renewal of

competitively offered visitor service

authorizations on National Wildlife

Refuges in Alaska.

DATES: This rule is effective February

13, 1997.

ADDRESSES: Regional Director, Alaska

Region, U.S. Fish and Wildlife Service,

1011 E. Tudor Road, Anchorage, Alaska

99503.

FOR FURTHER INFORMATION CONTACT:

David G. Patterson, Regional Public Use

Specialist, U.S. Fish and Wildlife

Service, 1011 E. Tudor Road,

Anchorage, Alaska 99503; Telephone

(907) 786–3389.

SUPPLEMENTARY INFORMATION:

Background

The ANILCA (16 U.S.C. 3101 et seq.)

was signed into law on December 2,

1980. Its broad purpose is to provide for

the disposition and use of a variety of

federally owned lands in Alaska.

Section 1307 of ANILCA (16 U.S.C.

3197) contains two provisions

concerning persons and entities who are

to be given special rights and

preferences with respect to providing

‘‘visitor services’’ in certain lands under

the administration of the Secretary of

the Interior, in this context, units of the

National Wildlife Refuge System. The

term ‘‘visitor service’’ is defined in

section 1307 as ‘‘* * * any service

made available for a fee or charge to

persons who visit a conservation system

unit, including such services as

providing food, accommodations,

transportation, tours, and guides

excepting the guiding of sport hunting

and fishing.’’

Subsection (a) of Section 1307 states

as follows: Notwithstanding any other

provision of law, the Secretary [of the

Interior], under such terms and

conditions as he determines are

reasonable, shall permit any persons

who, on or before January 1, 1979, were

engaged in adequately providing any

type of visitor service [as defined in

subsection (c)] within any area

established as or added to a

conservation system unit to continue

providing such type of service and

similar types of visitor services within

such area if such service or services are

consistent with the purposes for which

such unit is established or expanded (16

U.S.C. 3197).

Subsection (b) of Section 1307 states

as follows: Notwithstanding provisions

of law other than those contained in

subsection (a), in selecting persons to

provide (and in the contracting of) any

type of visitor service for any

conservation system unit, except sport

fishing and hunting guiding activities,

the Secretary [of the Interior]—

(1) shall give preference to the Native

Corporation which the Secretary

determines is most directly affected by

the establishment or expansion of such

unit by or under the provisions of this

Act; and

(2) shall give preference to persons

whom he determines, by rule, are local

residents * * * (16 U.S.C. 3197).

Subsection (b) also provides to Cook

Inlet Region, Incorporated (CIRI), in

cooperation with Village Corporations

within the Cook Inlet Region when

appropriate, the right of first refusal to

provide new visitor services within the

Kenai National Moose Range, (Kenai

National Wildlife Refuge), within the

Cook Inlet Region.

The Alaska National Wildlife Refuge

System is managed by the U.S. Fish and

Wildlife Service under the National

Wildlife Refuge System Administration

Act (16 U.S.C. 668dd–668ee), Refuge

Recreation Act (16 U.S.C. 460k–4), and

the Alaska National Interest Lands

Conservation Act (ANILCA) (84 Stat.

2371 et seq.; codified as amended in

scattered sections of 16 U.S.C., 43

U.S.C., 48 U.S.C.).
Federal Register / Vol. 62, No. 9 / Tuesday, January 14, 1997 / Rules and Regulations 1839

The Secretary of the Interior is

authorized under the National Wildlife

Refuge System Administration Act to

provide for visitor services within the

refuge system which he determines are

compatible with the purposes for which

the area was established as a refuge (16

U.S.C. 668dd(b)(1)). In accordance with

that authority, provision is made in the

Fish and Wildlife Service refuge

regulations for operation of public use

facilities and services on national

wildlife refuges by concessionaires or

cooperators under appropriate contracts

or legal agreements (50 CFR 25.61). This

rule provides the procedures for

selecting the providers of services and

facilities, excluding sport fishing and

hunting guiding activities, to the public

on national wildlife refuges in Alaska

under section 1307 of ANILCA. These

procedures apply only when a visitor

services permit must be issued

competitively.

Summary of Public Involvement

For the convenience of the public and

to enhance the public involvement

process, the National Park Service and

the U.S. Fish and Wildlife Service

agreed to publish simultaneously the

draft regulations implementing section

1307 of ANILCA and to undertake a

joint public involvement effort. The

public comment period was open from

April 25 to June 26, 1995, and then, in

response to numerous requests,

reopened from July 13 to September 11,

1995. The Fish and Wildlife Service

conducted public meetings jointly with

the National Park Service in Anchorage

and Fairbanks. The meetings were

mostly informational with one official

statement presented by a Native

Corporation. National Wildlife Refuge

field offices made individual contacts,

conducted informational public

meetings, and held open houses.

The Fish and Wildlife Service

received written comments from 28

different groups or individuals. Eight of

those commenters addressed Fish and

Wildlife Service issues specifically,

while 20 of the commenters addressed

issues of both agencies. The National

Park Service received an additional 28

written comments from groups or

individuals addressing specific park

issues. All written comments received

by one agency were shared with the

other agency in the event a response

addressed both agencies. Of the 28

written comments received by the Fish

and Wildlife Service, 11 were from

Alaska Native organizations, eight from

visitor service providers, three from

individuals, two from non-tourism

related businesses, two from special

interest groups, one from federal

government, and one from state

government. The following analysis

applies only to those 28 comments

affecting national wildlife refuges. The

comments are discussed on a section by

section basis.

Analysis of Public Comments

Comments touched on a wide range of

topics. A significant number of

comments addressed the statute

(ANILCA) rather than the regulations, or

offered opinions reflecting personal

choices rather than identifying problems

or potential improvements, or example,

‘‘preferences are not fair’’ or ‘‘are not

appropriate.’’ Also significant was the

number of commenters stating that the

regulations discriminate against Natives

or Native entities. On the other hand a

significant number of commenters

stated that the regulations give Natives

an unfair advantage in providing visitor

services. The view was raised by several

persons that giving preferences does not

always allow the selection of the best

qualified provider or the safest service,

and that preferences discourage nonpreferred providers from submitting

bids.

One commenter requested that

subsistence use of refuges be

specifically protected. Title 8 of

ANILCA provides that protection does

not need to be addressed in these

regulations. The same commenter stated

that the local Native Corporation should

be given a right of first refusal for any

visitor service provided in that refuge.

Section 1307 of ANILCA does not

provide for that right. Paragraph (b) does

require the Secretary of the Interior to

‘‘(1) * * * give preference to the Native

Corporation which the Secretary

determines is most directly affected by

the establishment or expansion of such

unit by or under the provisions of this

Act).’’

In the draft regulations the terms

‘‘new visitor services’’ and ‘‘future

visitor services’’ were used

interchangeably. Regulations

implementing section 1307 of ANILCA

apply to all new visitor services, except

hunting and fishing guiding, offered by

a competitive bidding process on all

national wildlife refuges in Alaska. The

term ‘‘new visitor services’’ is used

consistently throughout the final

regulations.

Section 36.37(b) Definitions

The definition of ‘‘adequate services’’

was subjective and lacked standards,

according to some commenters. The

term was not used in the text of the draft

regulations as published in the Federal

Register; it has been deleted from the

list of definitions.

Numerous commenters felt that the

definitions for ‘‘controlling interest’’

and ‘‘historical operator’’ should

include family members and partners in

those situations where a refuge permit

holder providing a visitor service is no

longer able to provide the service

because of death or illness. The policy

of the Service in Alaska is that refuge

permits will carry a right-ofsurvivorship during the term of the

permit. If an individual permittee dies

or becomes physically or mentally

incapacitated, the permit will

automatically pass to a qualified spouse,

immediate family member, or prior

existing business partner. This policy is

not limited to permits issued pursuant

to these regulations.

A diversity of commenters were

concerned about the definition of ‘‘local

area’’ and identified two predominant

issues: (1) the size of a community

should have no bearing on whether it is

local; and (2) because of the relationship

of the people to the land, a distance of

35 miles from the refuge boundary

could exclude communities from visitor

service areas which impact them

directly, while at the same time include

communities that have no socioeconomic ties to the location where a

visitor service would be offered.

Regarding the first issue, the Service

agrees that ‘‘local’’ should be

determined by proximity, not size. The

requirement that a community have a

population of 5,000 or fewer persons in

order to be considered local has been

deleted from the final regulation.

Regarding the second issue, different

suggestions were offered. The large size

of many of the refuges causes the

external boundary to be an inadequate

reference point when determining

‘‘local area.’’ In response to the

numerous comments the Service

reevaluated the issue and concluded

that ‘‘local area’’ should be defined

using the location of the visitor service

as the reference point. The final

regulation defines ‘‘local area’’ as

follows: ‘‘Local area means that area in

Alaska within 100 miles of the location

within a refuge where any of the visitor

service is authorized.’’

Likewise a significant portion of the

comments addressed the definition of

‘‘local resident,’’ both for individuals

and for corporations. Numerous

opinions were offered, the most

common being that any resident of the

State of Alaska should be considered

local. More of the comments related to

corporations than to individuals. A

sample of the comments include:

‘‘corporations should be treated the

same as an individual;’’ ‘‘Native

Corporations should be allowed to form
1840 Federal Register / Vol. 62, No. 9 / Tuesday, January 14, 1997 / Rules and Regulations

joint ventures with non-preferred

providers;’’ ‘‘a Native Corporation

should be considered local within its

regional corporation boundary;’’ ‘‘a

corporation should be considered local

if the majority of the shareholders are

local;’’ ‘‘if the majority of stockholders

of a corporation are local, there should

be no requirement for the corporation to

be headquartered locally;’’ and, ‘‘a

corporation should not be considered as

having changed because of a change in

the stockholder roster.’’

The purpose of paragraphs (b)(1) and

(b)(2) of section 1307 of ANILCA was to

provide assurance that the designation

of the wildlife refuges would not negate

economic opportunity for the persons

and businesses located within the

vicinity of those refuges, and who have

direct socio-economic ties to the

resources within the refuges. ANILCA

acknowledges the probability that some

Native Corporations having direct socioeconomic ties to a refuge may not be

considered local by definition.

Identification of the ‘‘most directly

affected Native Corporation’’ was to

protect the economic interests of those

Native Corporations in existence at the

time of the passage of ANILCA, and that

had social or economic ties to a

particular refuge. Designation of ‘‘most

directly affected Native Corporation’’

provides a preference to those Native

Corporations. A local preference and a

most directly affected Native

Corporation preference are equal in

value and are not additive. A Native

Corporation that is eligible for a local

preference receives no additional

preference by requesting designation as

most directly affected Native

Corporation.

After reviewing the draft regulations

in light of the comments received, the

Service agreed that the treatment of

corporations in the definition of local

resident was not equitable to the

treatment received by individuals. The

definition for local resident has been

rewritten so that location of the

headquarters is not a factor in

determining ‘‘local corporation.’’

Paragraph 36.37(b)(4)(ii) now reads as

follows: ‘‘For corporations. A

corporation in which the controlling

interest is held by an individual or

individuals who qualify as ‘local

resident(s)’ within the meaning of this

section. For non-profit corporations a

majority of the board members and a

majority of the officers must qualify as

‘local residents.’ ’’

Some commenters expressed concern

that non-local persons could move to a

community immediately prior to

submitting an offer to provide a visitor

service and thereby receive a local

preference. Other commenters

expressed concern that a business

located outside the local area could

arrange to have a local resident submit

an offer on its behalf and thereby

receive a local preference. Both these

scenarios appeared to be contrary to the

spirit of ANILCA. Responding to those

concerns the Service has further altered

the definition of ‘‘local resident’’ to

include a requirement that individuals

‘‘* * * have maintained a primary,

permanent residence and business

within the local area for the past twelve

consecutive months * * * .’’

Although not in response to a specific

comment, the Service added a definition

for ‘‘a responsive offer’’ to help clarify

the process used to identify preferred

operators.

Section 36.37(c) Visitor Services

Existing On or Before January 1, 1979,

‘‘historical operators’’

Several comments reflected confusion

regarding the ability of a historical

operator to increase the scope and level

of visitor services pursuant to section

1307. Paragraph (c)(1) states that a

historical operator may be permitted by

the Refuge Manager to increase the

scope or level of visitor services

provided prior to January 1, 1979, but

under separate authority. No historical

operating rights shall be obtained in

such increase. Paragraph (c)(2) states

that a historical operator may apply for

a permit or amended permit to provide

similar visitor services pursuant to

section 1307. For clarification the

following sentence has been relocated

within the paragraph: ‘‘Granting the

request will not result in an increase in

the scope or level of service in excess of

those provided by the requesting

historical operator as of January 1,

1979.’’

Concerns were expressed by several

commenters that the time allowed for

non-delivery of visitor services in

paragraph (c)(4) of the draft regulations

was not adequate to provide for certain

legitimate circumstances. After

reviewing the comments the Service

agreed that eleven (11) months was not

an appropriate time period to allow for

non-delivery of services. The time frame

has been increased to twenty-four (24)

months and is reflected in paragraph

(c)(5) of the final regulations. Twentyfour (24) months accommodates a

situation in which a visitor service

provider may only have a one month

season. If that provider is unable to offer

the service the following season for

reasons beyond his control, he would

then be twenty-three (23) months

without providing the visitor service.

Section 36.37(d) Visitor Services

Initially Authorized After January 1,

1979, ‘‘preferred operators’’

Many of the comments reflected

confusion regarding the relationship

between local preference and preference

for most directly affected Native

Corporation. The following sentence has

been added to paragraph (d)(1) for

clarity: ‘‘Preferences for most directly

affected Native Corporation(s) and local

residents are equal and are not

additive.’’

Numerous commenters, especially

those attending the public meetings in

Anchorage and Fairbanks, demonstrated

concern and confusion regarding the use

of the terms ‘‘best offer’’ and ‘‘meeting

the terms of the best offer.’’ To many

people the term ‘‘best offer’’ implies a

monetary bid. When the Service issues

a prospectus, bidders are required to

describe in detail the service they would

be providing. As an example, this

description might include types of

equipment, means of transportation,

personnel qualifications, safety

measures, methods of communication,

length of time required, and other

aspects of service delivery specified in

the prospectus. The bid, or response to

the prospectus, constitutes an ‘‘offer’’

and is evaluated by a panel. After

reviewing the comments, the Service

recognizes that ‘‘meeting the terms of

the best offer’’ would be difficult to

evaluate and could lead to unfair

comparisons. The term in the final

regulations has been changed as

suggested from ‘‘meeting the terms of

the best offer’’ to ‘‘substantially equal to

the terms of the best offer.’’ Also a

definition of ‘‘best offer’’ has been

added to §36.37(b).

Several commenters expressed

concern that Native Corporations were

not treated equitably by paragraph (d)(4)

of the draft regulations which required

a Native Corporation to document total

ownership of the business entity making

an offer in order to qualify for a

preference. A local corporation,

however, only needed to document a

controlling interest in the business

entity making an offer in order to

qualify for a preference. The paragraph

has been changed so that both Native

Corporations and local corporations are

required to document a controlling

interest in the entity making the offer.

In the case of a joint venture,

corporations with a preference must

document a controlling interest in the

joint venture.
Federal Register / Vol. 62, No. 9 / Tuesday, January 14, 1997 / Rules and Regulations 1841

Section 36.37(e) Preference to Cook

Inlet Region, Incorporated (CIRI)

In response to a request by CIRI the

comma was deleted before ‘‘when

appropriate’’ in the first sentence of

paragraph (e)(1) in order to be consistent

with the statutory language. The second

sentence of paragraph (e)(2) was more

appropriately placed in subsection (b)

Definitions. Also in paragraph (e)(2) the

draft regulations required an offer to

document total ownership by CIRI and/

or the village corporation in the entity

making the offer. This wording has been

changed to require documentation of a

controlling interest by CIRI rather than

a total ownership.

Section 36.37(f) Most Directly Affected

Native Corporation Determination

Many of the comments directed to

this paragraph were addressed in the

comment section for paragraph 36.37(b)

Definitions.

A few comments stated that ‘‘most

affected Native Corporation’’ status

should be determined by historical use.

Section 1307 of ANILCA provided a

preference to help offset potential

economic impacts caused by the

establishment of the refuges. Other

sections of ANILCA provide for

continued subsistence and other

traditional uses. Socio-economic

impacts are among the criteria identified

in the regulations and are to be used in

the determination of ‘‘most directly

affected Native Corporation.’’ Historical

use would be considered as it relates to

socio-economic impacts. Wording has

been added to paragraph (f)(1)(iii) to

accommodate historical and traditional

use.

One comment suggested that the

criteria for determination of ‘‘most

directly affected Native Corporation’’

should include land ownership in the

vicinity of the refuge and not merely

within or adjacent to the refuge.

The Service has decided to maintain

the wording as it appears in the draft

regulations. As stated earlier in the

comment analysis, section 1307 of

ANILCA was intended to help offset

potential economic impacts caused by

the establishment of the refuges.

Providing a preference to all individuals

or corporations experiencing

consequences would defeat the intent of

mitigating the impacts to those most

directly affected. In the case of Native

Corporations, although more than one

may be determined most directly

affected, the intent is to provide a

preference to those that are affected

‘‘most directly.’’ Native Corporations

owning land within or adjoining a

refuge boundary certainly have greater

potential to be impacted. The Service

does not believe it is appropriate to

diminish the opportunity for preference

afforded those Native Corporations by

expanding the criteria to include

additional Native Corporations. Neither

does the Service believe it to be

appropriate to automatically provide a

‘‘most directly affected’’ preference to a

Native Corporation based solely on its

proximity to the refuge boundary.

Although one Native Corporation

comment requested automatic

preference for the Regional Corporation

within whose boundary a visitor service

was being proposed, the Service

believes that all Native Corporation

requests for preference should be

reviewed equitably.

Paragraph (f)(3) of the draft

regulations contained a sentence

allowing joint ventures between

preferred operators. Several commenters

stated the concern that the wording was

too limiting and that preferred operators

should be permitted to enter into joint

ventures with non-preferred businesses.

Other commenters expressed concern

that non-Native, non-local businesses

would use a preferenced corporation or

individual as a front to respond to a

visitor service solicitation, thereby

receiving the preference. In evaluating

these two perspectives the Service

concluded that the spirit of section 1307

of ANILCA could easily be violated by

providing for joint ventures between

preferenced and non-preferenced

providers unless limits were placed on

the manner in which the joint venture

could be structured. Forbidding joint

ventures between preferenced and nonpreferenced providers, however, may

exceed appropriate limits. In order to

accommodate the expressed need for

expanded opportunities to form joint

ventures, the sentence in paragraph

(f)(3) limiting joint ventures has been

deleted.

The subject of joint ventures has been

addressed by rewriting paragraph (d)(4)

to read ‘‘An offer from a Native

Corporation or a local corporation under

this section must document its

controlling interest in the entity or, in

the case of a joint venture, all partners

making the offer.’’ Preferenced

providers wishing to access the

experience and/or resources of nonpreferenced providers are encouraged to

enter into alternative arrangements with

those providers. Such arrangements

must result in the preferenced provider

making the offer and being responsible

for the delivery of the visitor service, as

well as being accountable for the

performance of the permit terms and

conditions. Contracting the services of

the non-preferenced provider would be

an example of such an arrangement.

The draft regulations did not clearly

state the intent to provide multiple

opportunities to apply for ‘‘most

directly affected Native Corporation.’’

This has been clarified by adding

paragraph (f)(5) to the regulations.

Section 36.37(g) Appeal Procedures

To maintain consistency of appeal

procedures related to permits on

national wildlife refuges in Alaska, this

section of the draft regulations has been

rewritten and adopts the procedures set

forth in 50 CFR 36.41 Permits.

Paperwork Reduction Act

As required by the Paperwork

Reduction Act of 1995 (44 U.S.C.

3507(d)), the Service has had an

authorization number 1018–0014, from

the Office of Management and Budget

(OMB) that has expired. The Service has

received an emergency extension

through June 30, 1997, and is likewise

working on a long-term (three year),

authorization request which will be

submitted before the emergency

authorization expires.

This collection of information will be

achieved through the use of a USFWS

Application Form, which will be

modified pursuant to 50 CFR 13.12(b),

to address the specific requirements of

this final rule. The information

collection requirements needed for the

proper use and management of all

Alaska National Wildlife Refuges is

contained in 50 CFR 36.3. The

information is being collected to assist

the Service in administering these

recreation programs and, particularly, in

the issuance of permits and the granting

of statutory or administrative benefits.

This collection of information will

establish whether the applicant is fully

qualified to receive the benefits of a

refuge permit. The information such as

name, address, phone number, depth of

experience, qualifications, time in

residence, knowledge of function, and

affiliations, requested in the application

form is required to obtain a benefit.

The likely respondents to this

collection of information will be

individual Alaska citizens and local and

native corporations who wish to be

considered to receive a refuge permit.

This information will be needed by the

USFWS to determine whether a given

individual or corporation qualifies. A

refuge permit will be approved for five

(5) years. Permits shall be

noncompetively renewed by the refuge

manager for a period of five additional

years upon showing permitee

compliance with all applicable permit

terms and conditions, and a satisfactory
1842 Federal Register / Vol. 62, No. 9 / Tuesday, January 14, 1997 / Rules and Regulations

record of performance. The annual

burden of reporting and record keeping

should be less than 40 hours per

response, including the time for

reviewing instructions, searching

existing data sources, gathering and

maintaining data needed, and

completing and reviewing the collection

of information. The estimated number of

likely respondents is less than ten (10),

yielding a total annual reporting and

record keeping burden of four hundred

(400) hours or less.

Direct comments regarding the burden

estimate or any other aspect of the form

to the Service Information Collection

Clearance Officer, Fish and Wildlife

Service, Mail Stop 224, Arlington

Square, U.S. Department of the Interior,

1849 C Street, N.W., Washington, D.C.

20240, and to the Office of Information

and Regulatory Affairs, OMB, Attention:

Desk Officer for the Interior Department

(1018–0014), Washington, D.C. 20503.

Economic Analysis

Service review has revealed that this

rulemaking will establish the

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 National Wildlife

Refuge System lands in Alaska. This

rule provides guidance in the

solicitation, award, and renewal of

competitively offered visitor service

authorizations on refuges in Alaska.

ANILCA provides assurance that

designation of the wildlife refuges

would not negate economic opportunity

for the persons and businesses located

within the vicinity of those refuges, and

who have direct socio-economic ties to

the resources within the refuges.

It is estimated that the need for new

visitor services will result in less than

five (5) special use permits per year

statewide. There is a high probability

that local visitor service providers,

exercising their right under section

1307(b) of ANILCA, would be awarded

more permits than companies without

the preference. This preference will

have a positive impact on the local areas

by increasing the economic base of these

communities. This impact, while

important in relation to the total

economic level of the local area, is very

small in actual dollar value. It is

anticipated that each of the projected

new permits issued annually will

generate between $50,000 and $200,000

in revenue, depending on the service

provided. Therefore, this rule would

have no ‘‘significant’’ economic impact

on the local communities or local

governmental entities.

This rulemaking has been reviewed

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.

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 final regulations meet the

applicable standards provided in

Sections 3(a) and 3(b)(2) of Executive

Order 12988.

Environmental Considerations

In accordance with 516 DM 2,

Appendix 1, the Service claims a

categorical exclusion to this rulemaking

as this is pursuant to ‘‘policies,

directives, regulations and guidelines of

an administrative, financial, legal,

technical or procedural nature,’’ and as

this rulemaking establishes procedures

to allow new and continuing services on

Alaska refuge units.

Primary Author

The primary author of this rule is

David G. Patterson, Regional Public Use

Specialist, Fish and Wildlife Service,

Alaska Region.

List of Subjects 50 CFR Part 36

Alaska, Recreation and recreation

areas, Reporting and record keeping

requirements, and Wildlife refuges.

The U.S. Fish and Wildlife 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. 460k et seq., 668dd et

seq., 742(a) et seq., 3101 et seq., 44 U.S.C.

3501 et seq.

2. A new Section 36.37 is added to

subpart D of part 36 to read as follows:

§ 36.37 Revenue producing visitor

services.

(a) Applicability.

(1) Except as otherwise provided for

in this paragraph, the regulations

contained in this section apply to new

visitor services provided within all

National Wildlife Refuge areas in

Alaska.

(2) The rights granted by this section

to historical operators, preferred

operators, and Cook Inlet Region,

Incorporated, are not exclusive. The

Refuge Manager may authorize other

persons to provide visitor services on

refuge lands. Nothing in this section

shall require the Refuge Manager to

issue a visitor services permit if not

otherwise mandated by statute to do so.

Nothing in this section shall authorize

the Refuge Manager to issue a visitor

services permit to a person who is not

capable of carrying out its terms and

conditions in a satisfactory manner.

(3) This section does not apply to the

guiding of sport hunting or sport

fishing.

(b) Definitions. The following

definitions shall apply to this section:

(1) Best Offer means a responsive offer

that best meets, as determined by the

Refuge Manager, the selection criteria

contained in a competitive solicitation

for a visitor services permit.

(2) Controlling interest, in the case of

a corporation means an interest,

beneficial or otherwise, of sufficient

outstanding voting securities or capital

of the business, so as to permit exercise

of final managerial authority over the

actions and operations of the

corporation, or election of a majority of

the Board of Directors of the

corporation.

(3) Controlling interest in the case of

a partnership, limited partnership, joint

venture or individual entrepreneurship

means a beneficial ownership of or

interest in the entity so as to permit the

exercise of final managerial authority

over the actions and operations of the

entity.

(4) Controlling interest in other

circumstances means any arrangement

under which a third party has the ability

to exercise general management

authority over the actions or operations

of the business.

(5) Historical operator means any

person who:

(i) On or before January 1, 1979, was

lawfully engaged in adequately

providing any type of visitor service in

a refuge within the scope of paragraph

(c) of this section;

(ii) Has continued to lawfully provide

that visitor service; and

(iii) Is otherwise determined by the

Refuge Manager to have a right to

continue to provide such services or

similar services pursuant to paragraph

(c) of this section.

(6) Local area means that area in

Alaska within 100 miles of the location
Federal Register / Vol. 62, No. 9 / Tuesday, January 14, 1997 / Rules and Regulations 1843

within a refuge where any of the visitor

service is authorized.

(7) Local resident means:

(i) For individuals. Those individuals

that have maintained their primary,

permanent residence and business

within the local area for the past twelve

(12) consecutive months and whenever

absent from this primary, permanent

residence, have the intention of

returning to it. Factors demonstrating

the location of an individual’s primary,

permanent residence and business may

include, but are not limited to, the

permanent address indicated on

licenses issued by the State of Alaska,

tax returns, and voter registrations.

(ii) For corporations. A corporation in

which the controlling interest is held by

an individual or individuals who

qualify as ‘‘local resident(s)’’ within the

meaning of this section. For non-profit

corporations a majority of the board

members and a majority of the officers

must qualify as ‘‘local residents.’’

(8) Native Corporation means the

same as defined in section 102(6) of

ANILCA.

(9) Preferred operator means a local

resident or Native Corporation which is

entitled to a preference under this

section in the award of a permit, and as

otherwise provided under section

1307(b) of ANILCA.

(10) A responsive offer means one

which is timely made and meets the

terms and conditions of the solicitation

document.

(11) Similar visitor service means that

visitor service authorized by the Refuge

Manager to be provided on a refuge and

determined by the Refuge Manager, on

a case by case basis, to be similar to an

established service being provided by a

historical operator.

(12) 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

excepting the guiding of sport hunting

and fishing. This also includes any

activity where one participant/member

or group of participants pays more in

fees than the other participants (nonmember fees, etc.), or fees are paid to

the organization which are in excess of

the bona fide expenses of the trip.

(13) Right of first refusal means, as it

relates to section 1307(a) of ANILCA, a

reasonable opportunity for a historical

operator to review a description of the

new similar service and the terms and

conditions upon which it is to be

provided to determine if the historical

visitor service operator wishes to

provide the service. As it relates to

section 1307(c) of ANILCA, it refers to

the opportunity for Cook Inlet Region,

Incorporated to have the first

opportunity to provide new visitor

services on the Kenai National Wildlife

Refuge in the Cook Inlet Region.

(c) Visitor services existing on or

before January 1, 1979, ‘‘historical

operators’’.

(1) A historical operator shall have a

right to continue to provide visitor

services or similar services within such

area, under appropriate terms and

conditions, so long as such services are

determined by the Refuge Manager to be

consistent with the purposes for which

the refuge was established. A historical

operator must obtain a permit from the

refuge manager to conduct the visitor

services. The permit shall be for a fixed

term and specified area, and shall

contain such terms and conditions as

are in the public interest. Failure to

comply with the terms and conditions

of the permit may result in cancellation

of the authorization and consequent loss

of historical operator rights under this

section. Nothing in this section shall

prohibit the Refuge Manager from

permitting persons, in addition to

historical operators, to provide visitor

services in the refuge at the Refuge

Manager’s discretion so long as

historical operators are permitted to

conduct a scope or level of visitor

services equal to or greater than those

provided prior to January 1, 1979, under

terms and conditions consistent with

this section. A historical operator may

be permitted by the Refuge Manager,

under separate authority, to increase the

scope or level of visitor services

provided prior to January 1, 1979, but

no historical operating rights shall be

obtained in such increase.

(2) A historical operator may also

apply to the Refuge Manager for a

permit or amended permit to provide

similar types of visitor services.

Granting the request will not result in

an increase in the scope or level of

service in excess of those provided as of

January 1, 1979, by the requesting

historical operator. The Refuge Manager

shall grant the request if such visitor

services are determined by the Refuge

Manager to be:

(i) Consistent with the management of

refuge resources and the purposes for

which the refuge area was established;

(ii) Similar to the visitor services

provided by the historical operator prior

to January 1, 1979; and

(iii) Consistent with the legal rights of

any other person.

(3) When a historical operator permit

has expired, and if the visitor services

permitted by it were adequately

provided and consistent with the

purposes of the refuge as determined by

the Refuge Manager, the Refuge Manager

shall renew the permit for a fixed term

consistent with such new terms and

conditions as are in the public interest.

Should a historical operator decline to

accept an offer of renewal, its rights as

a historical operator shall be considered

as terminated.

(4) If the Refuge Manager determines

that permitted visitor services must be

curtailed or reduced in scope or season

to protect refuge resources, or for other

purposes, the Refuge Manager shall

require the historical operator to make

such changes in visitor services. If more

than one historical operator providing

the same type of visitor services is

required to have those services

curtailed, the Refuge Manager shall

establish a proportionate reduction of

visitor services among all such

historical operators, taking into account

historical operating levels and other

appropriate factors, so as to achieve a

fair curtailment of visitor services

among the historical operators. If the

level of visitor services must be so

curtailed that only one historical

operator feasibly may continue to

provide the visitor services, the Refuge

Manager shall select one historical

operator to continue to provide the

curtailed visitor services through a

competitive selection process.

(5) The rights of a historical operator

shall terminate if the historical operator

fails to provide the visitor services

under the terms and conditions of a

permit issued by the Refuge Manager or

fails to provide the visitor services for

a period of more than twenty four (24)

consecutive months.

(6) The rights of a historical operator

under this section shall terminate upon

a change, after January 1, 1979, in the

controlling interest of the historical

operator through sale, assignment,

devise, transfer or otherwise.

(7) The Refuge Manager may

authorize other persons to provide

visitor services in a refuge in addition

to historical operators, as long as such

other persons conduct the services in a

manner compatible with the purposes of

the refuge.

(d) Visitor services initially

authorized after January 1, 1979,

‘‘preferred operators’’.

(1) In selecting persons to provide,

and in permitting any type of visitor

service, excepting guided hunting or

fishing, the Refuge Manager will give a

preference to preferred operators

determined qualified to provide such

visitor services. Preferences for most

directly affected Native Corporation(s)

and local residents are equal and are not

additive.
1844 Federal Register / Vol. 62, No. 9 / Tuesday, January 14, 1997 / Rules and Regulations

(2) In selecting persons to provide any

type of visitor service for refuges subject

to a preferred operator preference under

this section, the Refuge Manager will

publicly solicit competitive offers for

persons to apply for a permit, or the

renewal of a permit, to provide such

visitor service pursuant to Service

procedures. Preferred operators must

submit a responsive offer to such

solicitation in order to effect their

preference. If, as a result of the

solicitation, an offer from a person other

than a preferred operator is determined

to be the best offer and that offeror is

determined to be capable of carrying out

the terms of the permit, the preferred

operator which submitted the most

responsive offer shall be given an

opportunity to substantially equal the

best offer received by amending its offer.

If the amended offer of the preferred

operator is considered by the Refuge

Manager as being substantially equal to

the terms of the best offer, the preferred

operator, if determined to be capable of

carrying out the terms of the permit,

shall be awarded the visitor service

permit. If the preferred operator fails to

meet these requirements, the Refuge

Manager shall award the permit to the

person who submitted the best offer in

response to the solicitation. The Native

Corporation(s) determined to be ‘‘most

directly affected’’ under this section and

local residents have equal preference.

(3) Nothing in this section shall

prohibit the Refuge Manager from

authorizing persons other than preferred

operators to provide visitor services in

refuge areas so long as the procedures

described in this section have been

followed with respect to preferred

operators. Preferred operators are not

entitled by this section to provide all

visitor services in a qualified refuge.

(4) An offer from a Native Corporation

or a local corporation under this section

must document its controlling interest

in the entity or in the case of a joint

venture, all partners, making the offer.

(5) The preferences described in this

section may not be sold, assigned,

transferred, or devised, directly or

indirectly.

(e) Preference to Cook Inlet Region,

Incorporated (CIRI).

(1) Cook Inlet Region, Incorporated, in

cooperation with village corporations

within Cook Inlet Region when

appropriate, shall have a right of first

refusal to provide new visitor services

within that portion of the Kenai

National Moose Range (Kenai National

Wildlife Refuge) within the boundaries

of Cook Inlet Region. The CIRI shall

have ninety (90) days from receipt of a

prospectus in which to exercise its right.

(2) In order to exercise this right of

first refusal, CIRI must submit an offer

responsive to the terms of a visitor

services solicitation. If CIRI makes such

an offer and is determined by the Refuge

Manager to be capable of carrying out

the terms of the special use permit, it

shall be awarded the permit. If it does

not, the permit may be awarded to

another person pursuant to a showing

that such other person can carry out the

conditions of the special use permit in

a manner compatible with the purposes

of the refuge. An offer being made by

CIRI under this section must document

controlling interest by CIRI when made

in cooperation with village corporations

within the Cook Inlet Region. The CIRI

right of first refusal shall have

precedence over the rights of preferred

operators.

(3) The right of first refusal described

in this section may not be sold,

transferred, devised, or assigned,

directly or indirectly.

(f) Most directly affected Native

Corporation determination.

(1) Prior to the issuance of a

solicitation document for any new

visitor service in a refuge, the Refuge

Manager shall provide an opportunity

for any Native Corporation interested in

providing visitor services within that

refuge to submit an application to the

Refuge Manager to be determined ‘‘most

directly affected’’ Native Corporation.

The application shall include but not be

limited to, the following information:

(i) The name, address, and telephone

number of the Native Corporation, the

date of incorporation, its articles of

incorporation and structure, and the

name of the applicable refuge area;

(ii) The location of the corporation’s

population center or centers;

(iii) An assessment of the

socioeconomic impacts, including

historical and traditional use, and their

effects on the Native Corporation as a

result of the expansion or establishment

of the refuge; and

(iv) Any other information the Native

Corporation believes is relevant.

(2) Upon receipt of all applications

from interested Native Corporations, the

Refuge Manager will determine the

‘‘most directly affected’’ Native

Corporation based on, but not limited

to, the following criteria:

(i) The number of acres of surface

land within and adjoining the refuge

that the Native Corporation owns, or

which has been selected under the

Alaska Native Claims Settlement Act,

unless such selection is determined to

be invalid or is relinquished;

(ii) The distance and accessibility

from the Native Corporation’s

population center and/or business

address to the applicable refuge; and

(iii) The socio-economic impacts,

including historic and traditional use,

and their effects as a result of the

expansion or establishment of the

refuge.

(3) In the event that more than one

Native Corporation is determined to be

equally affected, each such Native

Corporation shall be considered as a

preferred operator under this section.

(4) The Refuge Manager’s ‘‘most

directly affected’’ Native Corporation

determination or when requested, the

Regional Director’s appeal decision for a

refuge is applicable for all new visitor

services in that refuge.

(5) Any Native Corporation that has

not applied for a most directly affected

Native Corporation determination may

apply for a determination upon issuance

of a future solicitation for a new visitor

service. A corporation determined to be

most directly affected for a refuge will

maintain that status for all future visitor

service solicitations.

(g) Appeal procedures.

Any person(s) who believe that they

have been improperly denied rights

with respect to providing visitor

services under this section may appeal

the denial to the Regional Director. Such

an appeal must be submitted in writing

within forty-five (45) days of receipt of

the denial from which an appeal is

sought. The appeals process as defined

in 50 CFR Subpart F, 36.41 (b) will

apply with exception of the period of

time allowed to file an appeal.

Dated: September 10, 1996.

George T. Frampton, Jr.,

Assistant Secretary for Fish and Wildlife and

Parks.

[FR Doc. 97–884 Filed 1–13–97; 8:45 am]

BILLING CODE 4310–55–P