20380 Federal Register / Vol. 60, No. 79 / Tuesday, April 25, 1995 / Proposed Rules

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: Proposed rule.

SUMMARY: The Fish and Wildlife Service

(FWS) proposes regulations to

implement Section 1307 of the Alaska

National Interest Lands Conservation

Act (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 will provide guidance in the

solicitation, award, and renewal of

Alaska visitor service authorizations.

DATES: Written comments will be

accepted until June 26, 1995.

ADDRESSES: Comments should be

addressed to: 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

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.’’

Section (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;

(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–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.).

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 C.F.R. 25.61).

These proposed regulations provide the

means for selecting the providers of

services and facilities (except sport

fishing and hunting guiding activities)

to the public on national wildlife

refuges in Alaska under section 1307 of

ANILCA.

Paperwork Reduction Act

The information collection

requirements contained in part 36 have

been approved by the Office of

Management and Budget under 44

U.S.C. et seq. and assigned clearance

number 1018–0077. The information is

being collected to 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 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. Send comments

regarding this burden estimate or any

other aspect of this collection of

information, including suggestions for

reducing the burden, to Information

Collection Clearance Officer, MS 224

ARLSQ, U.S. Fish and Wildlife Service,

Department of the Interior, Washington,

DC 20240; and the Office of

Management and Budget, Paperwork

Reduction Project (1018–0077),

Washington, DC 20530.

Environmental Considerations

In accordance with 516 DM 2,

Appendix 2, 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 continuing services on certain

Alaska refuge units.

Economic Effects/Regulatory Flexibility

Act Compliance

This rule has been reviewed by the

Office of Management and Budget under

Executive Order 12866.

The Regulatory Flexibility Act of 1980

(5 U.S.C. 601 et. seq.) further requires

the preparation of flexibility analyses

for rules that will have a significant

effect on a substantial number of small

entities, which include small

businesses, organizations or

governmental jurisdictions. 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
Federal Register / Vol. 60, No. 79 / Tuesday, April 25, 1995 / Proposed Rules 20381

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.

Drafting Information

The primary author of this proposed

regulation 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 recordkeeping

requirements, and Wildlife refuges.

Accordingly, part 36 of chapter I of

Title 50 of the Code of Federal

Regulations is proposed to be amended

as set forth below.

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 § 36.37 is added to subpart

D of part 36 to read as follows:

§ 36.37 Revenue producing visitor

services.

(a) Applicability.

The regulations contained in this

section apply to visitor services, except

guided sport fishing and hunting,

provided within all Alaska National

Wildlife Refuge areas.

(b) Definitions. The following

definitions shall apply to this section:

(1) Adequate services means, services

which are safe, sanitary, and attractive,

at levels visitors would expect from the

private sector operating outside U.S.

Fish and Wildlife Service (Service)

areas, have been evaluated as

satisfactory, and meet the needs and

requirements of the Service and the

refuge in which the service is

authorized.

(2) Controlling interest means, in the

case of a corporation, 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. ‘‘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. In other

circumstances, ‘‘controlling interest’’

means any arrangement under which a

third party has the ability to exercise

general management authority over the

actions or operations of the business.

(3) 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 provide that

visitor service without a break in the

service for more than eleven continuous

months; 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.

(4) Local area means that area in

Alaska within the refuge boundary as

well as the area within 35 straight-line

miles of the refuge boundary, but

excluding communities with a

population in excess of five thousand

persons.

(5) Local resident means:

(i) For individuals that operate a

business as a sole proprietorship or

partnership. Those individuals that

maintain a primary, permanent

residence and business within the local

area 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, Department of Fish

and Game, tax returns, and voter

registrations.

(ii) For corporations. A corporation

which maintains its headquarters within

the local area, and all of the

stockholders, who own a controlling

interest in the corporation, qualify as

individual local residents under this

section.

(6) Native Corporation means the

same as defined in section 102(6) of

ANILCA.

(7) Preferred operator means a local

resident or Native Corporation which is

entitled to a preference under this

section in the award of visitor service

authorizations, and as otherwise

provided under section 1307(b) of

ANILCA.

(8) 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 an

historical operator.

(9) 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.

(10) 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.

(11) Right of preference means that

persons with a preference conveyed by

section 1307(b) of ANILCA will be given

an opportunity to meet the terms and

conditions of the best proposal

submitted in response to a visitor

service prospectus.

(c) Visitor services existing on or

before January 1, 1979, ‘‘historical

operators’’. (1) An historical operator

shall have a right to continue to provide

visitor services or similar services in a

refuge 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. An historical

operator must obtain a permit from the

refuge manager to conduct the visitor

services. The permit shall be for a fixed

term 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
20382 Federal Register / Vol. 60, No. 79 / Tuesday, April 25, 1995 / Proposed Rules

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. An historical operator may

be permitted by the Refuge Manager

under seperate 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) When an historical operator permit

has expired, and if the visitor services

permitted thereunder continue to be

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 an historical

operator decline to accept an offer of

renewal, its rights as an historical

operator shall be considered as

terminated.

(3) 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.

(4) The rights of an 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 eleven

consecutive months.

(5) The rights of an historical operator

under this section shall terminate upon

a change, after January 1, 1979, in the

controlling interest in the historical

operator through sale, assignment,

devise, transfer or otherwise.

(6) An historical operator may apply

to the Refuge Manager for a permit or

amended permit to provide similar

visitor services. The Refuge Manager

shall grant the request if such visitor

services are determined by the Refuge

Manager:

(i) To be 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;

(iii) To not be in violation of the legal

rights of any other person; and

(iv) Granting the request will not

result in an increase in the scope and

level of service in excess of those

provided by the requesting historical

operator as of January 1, 1979.

(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 conducted 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 services, excepting guided

hunting or fishing, the Refuge Manager

will give a preference to preferred

operators determined qualified to

provide such visitor services.

(2) In selecting persons to provide any

type of visitor services for refuges

subject to a preferred operator

preference under this section, the

Refuge Manager will publicly solicit

offers for persons to apply for a permit,

or the renewal of a permit, to provide

such visitor services pursuant to Service

procedures. A preferred operator 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 received and that

offeror is determined to be capable of

carrying out the terms of the

authorization, a preferred operator

which submitted a responsive offer shall

be given an opportunity to meet the

terms of the best offer received by

amending its offer. If the amended offer

of a preferred operator is considered by

the Refuge Manager as meeting the

terms of the best offer, the preferred

operator, if it is determined to be

capable of carrying out the terms of the

permit, shall be awarded the visitor

service permit. If a 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. In

the event this process results in more

than one preferred operator having

submitted an offer meeting the terms of

the best offer received, the Refuge

Manager will select for award of the

permit that preferred operator who

submitted the best offer as determined

by the Refuge Manager.

(3) The rights of preferred operators

under this section take precedence over

the permit privileges granted to

satisfactorily performing current special

use permit holders, but do not take

precedence over the rights of historical

operators as described in this section.

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

under this section must document its

total ownership of the business entity

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, (CIRI) 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. 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 a

responsive offer under the terms of a

Service public solicitation for offers to

conduct such visitor services. A

responsive offer is one which is timely

made and meets the terms and

conditions of the solicitation document.

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 from

CIRI under this section must document

total ownership in the entity making the
Federal Register / Vol. 60, No. 79 / Tuesday, April 25, 1995 / Proposed Rules 20383

offer by CIRI and/or a Village

Corporation. 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 future visitor service in a refuge,

the Refuge Manager shall provide an

opportunity for any Native Corporation

interested in providing such new visitor

services within a refuge to submit an

application to the Refuge Manager

including, but not limited to, the

following information:

(i) The name, address, and phone

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 Native

Corporation’s population center or

centers; and

(iii) The socio-economic impacts and

their effects as a result of the expansion

or establishment of the refuge area.

(2) Upon receipt of all applications

from interested Native Corporations, the

Refuge Manager will determine the

‘‘most directly affected’’ Native

Corporation based on 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 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.

Preferred operators may form joint

ventures with other preferred operators

in applying for a visitor service

authorization 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 final for all applicable

solicitations for new visitor services.

(g) Appeal procedures. Any person

who considers 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 thirty

(30) days of receipt of the denial from

which an appeal is sought. Appeals

must set forth the facts and

circumstances which the appellant

considers as supporting the appeal. The

appellant may request an informal

meeting to discuss the appeal with the

Regional Director. After consideration of

the materials submitted by the

appellant, the Service record of the

matter, and any meeting as requested by

the appellant, the Regional Director

shall affirm, reverse, or modify the

denial appealed from and shall set forth

in writing the basis of the decision. A

copy of the decision shall be forwarded

to the appellant and shall constitute the

final administrative decision in the

matter. No person shall be considered to

have exhausted administrative remedies

with respect to a denial of rights to

provide visitor services under this

section until a final administrative

decision has been made pursuant to this

section.

Dated: March 18, 1995.

George T. Frampton, Jr.,

Assistant Secretary for Fish and Wildlife and

Parks.

[FR Doc. 95–10111 Filed 4–24–95; 8:45 am]

BILLING CODE 4310–55–P