[Federal Register Volume 62, Number 9 (Tuesday, January 14, 1997)]
[Rules and Regulations]
[Pages 1838-1844]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-884]


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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.

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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.).

[[Page 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 non-preferred 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-of-survivorship 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 socio-economic 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

[[Page 1840]]

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 socio-economic 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. Twenty-four (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 Sec. 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.

[[Page 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 non-preferenced 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 non-preferenced 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

[[Page 1842]]

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:


Sec. 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

[[Page 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 (non-member 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.

[[Page 1844]]

    (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