[Federal Register Volume 60, Number 79 (Tuesday, April 25, 1995)]
[Proposed Rules]
[Pages 20380-20383]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10111]
[[Page 20379]]
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Part X
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 36
Visitor Service Authorizations on Alaska National Wildlife Refuges;
Proposed Rule
Federal Register / Vol. 60, No. 79 / Tuesday, April 25, 1995 /
Proposed Rules
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[[Page 20380]]
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.
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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
[[Page 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 Sec. 36.37 is added to subpart D of part 36 to read as
follows:
Sec. 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 (non-member 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
[[Page 20382]] 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 [[Page 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