[Federal Register Volume 62, Number 80 (Friday, April 25, 1997)]
[Proposed Rules]
[Pages 20140-20146]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-10698]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 251

RIN 0596-AB57


Land Uses

AGENCY: Forest Service, USDA.

ACTION: Proposed rule.

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SUMMARY: The Forest Service proposes regulations to establish the 
procedures by which certain persons may conduct revenue-producing 
visitor services in Conservation System Units within the National 
Forests in Alaska. These regulations are required by section 1307 of 
the Alaska National Interest Lands Conservation Act. The intended 
effect is to establish workable procedures for recognizing and 
administering the statutory rights and preferences for conducting 
visitor services.

DATES: Comments must be received in writing by June 24, 1997.

ADDRESSES: Send written comments to Regional Forester, Alaska Region, 
Forest Service, USDA, PO Box 21628, Juneau, AK 99802-1628.
    The public may inspect comments received on this proposed rule at 
the Alaska Regional Office, Room 519A, Federal Building, 709 W. 9th 
Street, Juneau, AK 99802, Monday through Friday between the hours of 8 
a.m. to noon and 12:30 p.m. to 4 p.m.

FOR FURTHER INFORMATION CONTACT:
Arn Albrecht, Public Services Staff, Alaska Region, (907) 586-7886.

SUPPLEMENTARY INFORMATION:

Background

    The Forest Service manages National Forest System lands in Alaska 
consisting of the Tongass and the Chugach National Forests in southeast 
and southcentral areas of the State. A number of laws govern the 
issuance and administration of special use authorizations that 
authorize a variety of visitor services operated by private 
concessionaires, ranging from outfitting and guiding to resorts. These 
laws include the Organic Organization Act of June 4, 1897; the Term 
Permit Act of March 4, 1915; the Granger-Thye Act of April 24, 1950; 
the Land and Water Conservation Fund Act of September 3, 1964; the 
Wilderness Act of September 3, 1964, the Alaska National Interest Lands 
Conservation Act of 1980; and the National Ski Area Permit Act of 1986. 
Regulations at 36 CFR part 251, subpart B address the special-use 
application process; the nature of interest of an authorization; terms 
and conditions of use; rental fees; issuance; termination; revocation; 
suspension; and renewal. These regulations must be augmented to 
implement the special statutory requirements specific to Conservation 
System Units within the National Forests in Alaska.

Statutory Requirements

    The Alaska National Interest Lands Conservation Act (ANILCA) (16 
U.S.C. 3101 et seq.) provided for the disposition and use of a variety 
of federally owned lands in Alaska. Section 1307 (16 U.S.C. 3197) 
contains two provisions concerning persons and entities who are to be 
given special rights and preferences with respect to revenue producing 
``visitor services'' on certain lands within the National Forest System 
designated by ANILCA as Conservation System Units under the 
administration of the Secretary of Agriculture.
    A Conservation System Unit, as it relates to the National Forests, 
means any unit in Alaska of the National Wild and Scenic River System, 
National Trail System, National Wilderness Preservation System or a 
National Forest Monument including existing Units or any such Unit 
established, designated, or expanded hereafter. (ANILCA section 102(4)) 
(43 U.S.C. 1618)
    Subsection (a) of section 1307 (16 U.S.C. 3197) provides that, 
notwithstanding any other provision of law, the Secretary of 
Agriculture, under

[[Page 20141]]

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 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.
    Subsection (b) of section 1307 (16 U.S.C. 3197) provides that in 
selecting persons to provide any type of visitor service for any 
Conservation System Unit, except sport fishing and hunting guiding 
activities, and except as provided in subsection (a), the Secretary of 
Agriculture shall (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; and 
(2) give preference to persons whom he determines, by rule, are local 
residents. (16 U.S.C. 3197)
    Subsection (c) of section 1307 (43 U.S.C. 1611) defines ``Visitor 
Service'' to mean 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.

Interagency Coordination

    On April 25, 1995, the National Park Service and the United States 
Fish and Wildlife Service each issued proposed rules to implement 
section 1307 of ANILCA for national park lands and refuges in Alaska. 
The Forest Service has coordinated with these agencies in the 
development of these proposed regulations in order to provide 
consistency in the implementation of this section of ANILCA in so far 
as is practical within the framework of each agency's legal mandates.

Section-by-Section Explanation

    The Forest Service proposes to augment the special uses rules at 
subpart B by establishing a new subpart E to govern ``Revenue Producing 
Visitor Services in Alaska''. An explanation of each section of this 
proposed subpart follows.

Proposed Section 251.120  Scope and Applicability

    This section explains that these regulations implement section 1307 
of ANILCA with regard to the continuation of visitor services existing 
as of January 1, 1979, and to granting preference to local residents 
and certain Native Corporations to obtain special use authorizations 
for visitor services on designated lands within the Tongass and Chugach 
National Forests in Alaska. The regulations will apply only to Forest 
Service administered Conservation System Units (CSU's), not all 
National Forest Lands. Existing CSU's within the Tongass and Chugach 
National Forests include the following:

National Monuments Established Within the Tongass National Forest

Misty Fiords National Monument
Admiralty Island National Monument

Wilderness Areas Established Within the Tongass National Forest

Chuck River Wilderness
Coronation Island Wilderness
Endicott River Wilderness
Karta Wilderness
Kootznoowoo Wilderness
Kuiu Wilderness
Maurelle Islands Wilderness
Misty Fiords National Monument Wilderness
Petersburg Creek-Duncan Salt Chuck Wilderness
Pleasant/Lemesurier/Indian Islands Wilderness
Russell Fiord Wilderness
South Baranof Wilderness
South Etolin Wilderness
South Prince of Wales Wilderness
Stikine-LeConte Wilderness
Tebenkof Bay Wilderness
Tracy Arm-Fords Terror Wilderness
Warren Island Wilderness
West Chichagof-Yakobi Wilderness

Units of the National Trails System

Iditarod National Historic Trail (Seward to Girdwood Section on the 
Chugach National Forest)
National Recreation Trails (six on Tongass NF and four on the Chugach 
NF)

Units of the Wild and Scenic River System

There are no Wild, Scenic, or Recreation Rivers currently designated 
within the National Forests in Alaska.

    This section also explains that existing regulations in 36 CFR part 
251, subpart B, concerning special use authorizations apply unless 
expressly waived by the rules in subpart E. In conformance with ANILCA, 
this section states that this subpart does not apply to the guiding of 
sport hunting and fishing.

Proposed Section 251.121  Definitions

    This section provides a number of definitions for special terms 
used in the regulations. Pertinent definitions are discussed under 
various sections of the proposed rule.

Proposed Section 251.122  Historical Operator Special Use 
Authorizations

    These provisions implement subsection (a) of section 1307 and 
permit persons who were adequately providing visitor services in 
applicable National Forest areas in Alaska prior to January 1, 1979, to 
continue to do so under reasonable terms and conditions.
    Persons who, on or before January 1, 1979, were engaged in 
adequately providing any type of visitor service within a Conservation 
System Unit in Alaska, who have continued to provide that visitor 
service, and who have retained controlling interest in the business 
would be considered ``historical operators'' under these regulations.
    Proposed Sec. 251.122 establishes the process by which persons who 
qualify as historical operators could exercise the rights and 
preferences granted under section 1307(a) of ANILCA.
    This section makes it clear that the existence of a right to 
continue to provide visitor services under subsection 1307(a) is not an 
unlimited right. Rather, such a right is subordinate to the management 
of the CSU and does not grant a monopoly to provide all visitor 
services in a given area to the exclusion of other individuals or 
entities. A historical operator; however, may provide services similar 
to those provided prior to January 1, 1979, if acceptable to the Forest 
Service as consistent with the purposes of the CSU and provided that 
the similar services are not in excess of those provided by the permit 
holder as of January 1, 1979.
    This section also specifies under what circumstances historical 
operator rights are lost. These include revocation due to failure to 
comply with the special use authorization terms and conditions; 
declination of a special use authorization renewal offer; and failure 
to provide authorized services for a period of 24 consecutive months. 
In addition, the rights of a historical operator would be considered 
terminated upon a change in the controlling interest in the historical 
operator. This provision is necessary to prevent transfer of these 
``grandfathered'' rights to third parties. If the acquisition of the 
controlling interest is by an individual(s) personally engaged in the 
visitor service activity before January 1, 1979, historical operator 
rights would continue to be recognized. For example, an individual 
(qualified as a historical operator) holding a special use 
authorization may

[[Page 20142]]

transfer a controlling interest in the business to a spouse, child, or 
informal partner if the transferee was personally engaged in the 
conduct of the historical business prior to January 1, 1979.

Proposed Section 251.123  Preferred Operator Competitive Special Use 
Authorization Procedures

    This section implements subsection (b) of section 1307 and would 
grant a preference to certain individuals and Native Corporations in 
the award of special use authorizations to provide visitor services in 
CSUs.
    The provisions of this section apply to two categories of persons 
to be given a preference pursuant to section 1307(b) of ANILCA, 
collectively referred to as ``preferred oeprators''. Both categories 
have equal preference in the award of a special use authorization.
    The first category of preferred operators is the Native Corporation 
determined by the authorized officer to be most directly affected by 
the establishment or expansion of the CSU.
    The second category of preferred operators consists of persons who 
are determined by the authorized officer to be current local residents. 
A ``local resident'' is defined in these proposed regulations to mean:
    (1) For individuals. Those individuals who have lived within the 
local area for 12 consecutive months before issuance of a solicitation 
of applications for a special use authorization for visitor services in 
a CSU and who maintain their primary, permanent residence and business 
within the local area and who, whenever absent from this primary, 
permanent residence, have the intention of returning to it. Factors 
demonstrating the locations 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 registration.
    (2) 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''.
    A ``local area'' is defined as that area within 100 miles of the 
location within a Conservation System Unit where any visitor services 
covered by a single solicitation by the Forest Service are to be 
authorized. The area covered by a particular solicitation where visitor 
services would be authorized could vary from a specific location within 
a CSU to the entire area within the CSU boundary depending upon the 
particular visitor services being solicited.
    Proposed Sec. 251.124 establishes a procedure for the solicitation 
and award of special use authorizations, which incorporates the rights 
of preferred operators under section 1307(b). This section of the law 
takes effect only when there is a competitive award of a special use 
authorization. Under proposed Sec. 251.124 the authorized officer must 
publicly solicit offers to provide visitor services by issuing a 
prospectus, when the Forest Service determines the following:
    (1) There is a need for visitor services within the area of the 
CSU;
    (2) There is a need to limit authorized visitor use in the area 
and/or the number of authorized operators;
    (3) There is an opportunity for competitive bidding to provide such 
services; and
    (4) The proposed visitor services are consistent with the 
applicable Forest Plan direction and all applicable laws and 
regulations.
    In all other situations, except as provided in proposed 
Sec. 251.122 for historical operators, special use authorizations would 
be issued non-competitively on a first-come, first-serve basis upon 
application to the authorized officer in accordance with the rules at 
subpart B.
    In soliciting applications for special use authorizations for 
visitor services, the authorized officer must include the selection 
criteria in the prospectus describing the services to be provided. At a 
minimum, the authorized officer's selection of the best offer shall be 
based on an evaluation of the applicant's timely response to the 
following criteria:
    (1) The kind and quality of visitor service(s) to be provided:
    (2) The experience and qualifications required of the operator to 
demonstrate capability;
    (3) The applicant's financial resources and status; and
    (4) The amount of return to the Government.
    In order to exercise the preference, a preferred operator must 
submit a responsive offer under the terms of a public solicitation 
generally referred to as a prospectus. If the preferred operator 
submits the best overall offer, that operator would be awarded the 
special use authorization if the preferred operator is determined to be 
capable of carrying out the terms of the special use authorization. If 
the best offer received in response to the solicitation is made by an 
applicant other than a preferred operator, then the preferred operator, 
who made the best offer of all the preferred operators, shall be given 
the opportunity to amend the offer to meet the terms and conditions of 
the best offer. The special use authorization would be awarded to that 
preferred operator, if the authorized officer concludes that the 
preferred operator's amended offer is substantially equal to the best 
offer and that the preferred operator is capable of carrying out the 
terms of the special use authorization. Otherwise, the special use 
authorization will be awarded to the original overall best offer. By 
allowing only the operator with the best offer among the preferred 
operators to meet the terms and conditions of the overall best offer, 
this section provides a process for dealing with offers from multiple 
preferred operators in a way that encourages initial competitive offers 
from all applicants, while still providing for the statutory 
preferences.
    If a preferred operator's offer under this subpart is in the form 
of a joint venture, the offer shall be considered valid only when it 
documents to the satisfaction of the authorized officer that the 
preferred operator holds the controlling interest in the joint venture.
    Native Corporations and local residents, who submit an offer in the 
form of a joint venture with other persons, will retain their preferred 
operator status so long as they have the controlling interest in the 
joint venture. This provision allows business flexibility without 
compromising the statutory intent of section 1307.

Proposed Section 251.124  Most Directly Affected Native Corporation 
Determination

    This section establishes procedures and criteria for determining 
which Native Corporation is most directly affected by the establishment 
or expansion of a particular CSU and, accordingly, is a preferred 
operator with respect to that CSU. Before the award of the first 
special use authorizations after the effective date of this subpart, 
interested Native Corporations will be given the opportunity to be 
considered for a determination of ``most directly affected''. In giving 
notice of the application procedure, the authorized officer would make 
clear that this is the only opportunity to apply for ``most directly 
affected'' status for that particular CSU. In the event that more than 
one Native Corporation is determined to be equally affected, each such 
corporation will be considered a preferred operator. An authorized 
officer's decision as to the ``most directly affected'' Native 
Corporation or, if appealed under 36 CFR part 251, subpart C, the 
reviewing officer's

[[Page 20143]]

decision, is applicable for all future visitor services for that 
particular CSU.

Proposed Section 251.125  Preferred Operator Privileges and Limitations

    This proposed section specifies the privileges and limitations 
accorded to preferred operators. Except as provided at 
Sec. 251.122(d)(2)(ii) for historic operators, preferred operators 
would have preference over all other applicants in the issuance of 
special use authorizations. The preferences described in this section 
could not be sold, assigned, transferred, or devised, directly or 
indirectly. If an operator qualifies as a local resident for any part 
of an area designated in a solicitation for a specific visitor service, 
the operator shall be treated in matters related solely to that 
solicitation as a local resident for the entire area covered by that 
solicitation. Local residents and ``most directly affected'' Native 
Corporations have equal priority for consideration in providing visitor 
services. As with historical operators, the Forest Service does not 
intend that preferred operators obtain an exclusive right to provide 
visitor services to the exclusion of other individuals or entities.

Proposed Section 251.126  Appeal Procedures

    This section of the proposed rule makes clear that decisions 
related to the issuance of special use authorizations in response to 
written Forest Service solicitations or to the modifications of special 
use authorizations to reflect historical use may be appealed under 
existing Forest Service appeal regulations in part 251 subpart C.

Conclusions

    These regulations are needed to implement the provisions of ANILCA 
concerning the rights and preferences granted to historical operators, 
local residents, and ``most affected'' Native Corporations in the award 
of special use authorizations for visitor services. For a number of 
years following the passage of ANILCA, there was little need to limit 
use or the number of special use authorizations for visitor services 
within the CSUs administered by the Forest Service. With increasing 
tourism and numbers of applicants for special use authorizations to 
provide visitor services, there may be a need to limit the number of 
special use authorizations in specific areas to protect resource 
values. In these situations, special use authorizations will need to be 
competitively awarded in a process that honors the statutory rights and 
preferences. These proposed regulations are intended to provide that 
process. Interested persons are invited to submit written comments, 
suggestions, or objections regarding the proposed rule.

Regulatory Impact

    This proposed rule has been reviewed under USDA procedures and 
Executive Order 12866 on Regulatory Planning and Review. It has been 
determined that this is not a significant rule. This rule will not have 
an annual effect of $100 million or more on the economy nor adversely 
affect productivity, competition, jobs, the environment, public health 
or safety, nor State or local governments. This rule will not interfere 
with an action taken or planned by another agency nor raise new legal 
or policy issues. Finally, this action will not alter the budgetary 
impact of entitlements, grants, user fees, loan programs or the rights 
and obligations of recipients of such programs. Accordingly, this 
proposed rule is not subject to OMB review under Executive Order 12866.
    Moreover, this proposed rule has been considered in light of the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and it is certified 
that this action will not have a significant economic impact on a 
substantial number of small entities as defined by that Act. The agency 
estimates that less than 100 small entities would be affected by this 
rule for the foreseeable future and the effect would not be a 
significant economic one. The statute itself provides a competitive 
advantage for Native Corporations and local residents which may qualify 
as small entities. The rules merely provide the process by which the 
statute can be implemented and, in and of themselves, do not add or 
decrease any preference granted by the statute.

Environmental Impact

    An environmental assessment has been prepared on this proposed rule 
and is available from the office listed under ADDRESSES earlier in this 
document. A determination of the significance of environmental impacts 
of the proposed action will be made upon adoption of the final rule. 
Reviewers may include comments on the environmental assessment along 
with any comments submitted on the proposed rule.

No Takings Implications

    This proposed rule has been analyzed in accordance with the 
principles and criteria contained in Executive Order 12630, and it has 
been determined that the proposed rule does not pose a risk of a taking 
of Constitutionally-protected private property.

Controlling Paperwork Burdens on the Public

    The information required to determine the most directly affected 
Native Corporations in Sec. 251.124 of this proposed rule represents a 
new information requirement as defined in 5 CFR part 1320, Controlling 
Paperwork Burdens on the Public. In accordance with those rules and the 
Paperwork Reduction Act of 1995, as amended (44 U.S.C. 3507), the 
Forest Service is requesting Office of Management and Budget review and 
approval of the information required for making the most affected 
Native Corporation determinations.
    The collections of information contained in Sec. 251.122 and 
Sec. 251.123 of this proposed rule are for purposes of preparing an 
offer in response to visitor services solicitation pursuant to 36 CFR 
part 251, subpart B, and have been approved by the Office of Management 
and Budget and assigned a clearance number of 0596-0082.

Description of Information Collection

    The following describes the information collection associated with 
this rulemaking:
    Title: Most directly affected Native corporation determination.
    OMB Number: New.
    Expiration Date of Approval: New.
    Type of Request: The following describes a new collection 
requirement and has not received approval by the Office of Management 
and Budget.
    Abstract: This paperwork collection provides the necessary 
information for the Forest Service to determine which Alaska Native 
corporations qualify for the statutory preference in the award 
competitively issued special use authorizations for commercial visitor 
services on designated lands within the National Forests in Alaska. The 
Forest Service must determine which Native Corporations were most 
affected by the establishment of particular Conservations System Units 
(CSU) in order to provide the statutory priority required by the Alaska 
National Interest Lands Conservation Act (16 U.S.C. 3197). The 
collection of needed information will require time to review 
instructions, search existing data sources, and to gather and maintain 
data. Data collected in this information collection is not available 
from other sources. This is a one time collection for each CSU. 
Information gathering and ``most affected'' determinations will likely 
be made on only one CSU annually.
    Estimate of Burden: 20 hours.
    Type of Respondents: Alaska Native Corporations.

[[Page 20144]]

    Estimated Number of Respondents: 10 per year.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 1 x 20 x 10=200 
hours.
    Comments are Invited on: (a) Whether the proposed collection of 
information is necessary for the proper performance of the functions of 
the agency, including whether the information will have practical 
utility; (b) the accuracy of this agency's estimate of the burden of 
the proposed collection of information; (c) ways to enhance the 
quality, utility, and clarity of the information to be collected; and 
(d) ways to minimize the burden of the collection of information on 
respondents, including the use of automated collection techniques or 
other forms of information technology.

Use of Comments

    All comments received in response to this notice will be summarized 
and included in the request for OMB approval. All comments will also 
become a matter of public record.
    Send comments regarding this burden estimate or any other aspect of 
this collection of information, including suggestions for reducing the 
burden to the Regional Forester, Alaska Region, at the address shown in 
this document as well as to the: Forest Service Desk Officer, Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
Washington, DC 20503.

Unfunded Mandates Reform

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995, 
which the President signed into law on March 22, 1995, the Forest 
Service has assessed the effects of this rule on State, local, and 
tribal governments and the private sector. This rule does not compel 
the expenditure of $100 million or more by any State, local, or tribal 
governments or anyone in the private sector. Therefore, a statement 
under section 202 of the Act is not required.

Civil Justice Reform Act

    This proposed rule has been reviewed under Executive Order 12778, 
Civil Justice Reform. If this proposed rule were adopted, (1) all state 
and local laws and regulations that are in conflict with this proposed 
rule or which would impede its full implementation would be preempted; 
(2) no retroactive effect would be given to this proposed rule; (3) it 
would not require administrative proceedings before parties may file 
suite in court challenging its provisions.

List of Subjects in 36 CFR Part 251

    Electric power, Mineral resources, National forest land uses, 
National forests, Rights-of-way, and Water resources.

    Therefore, for the reasons set forth in the preamble, it is 
proposed to amend part 251 of title 36 of the Code of Federal 
Regulations as follows:

PART 251--LAND USES

    1. The authority citation for Part 251 is revised to read as 
follows:

    Authority: 16 U.S.C. 472, 551, 1134, 3170, 3197, 3210; and 30 
U.S.C. 185; and 43 U.S.C. 1740, unless otherwise noted.

    2. Add a new subpart E to read as follows:

Subpart E--Revenue Producing Visitor Services in Alaska

Sec.
251.120  Applicability and scope.
251.121  Definitions.
251.122  Historical operator special use authorizations.
251.123  Preferred operator competitive special use authorization 
procedures.
251.124  Most directly affected Native corporation determinations.
251.125  Preferred operator privileges and limitations.
251.126  Appeals.

Subpart E--Revenue Producing Visitor Services in Alaska


Sec. 251.120  Applicability and scope.

    (a) These regulations implement section 1307 of Alaska National 
Interest Lands Conservation Act (16 U.S.C. 3197) with regard to the 
continuation of visitor services offered as of January 1, 1979, and the 
granting of a preference to local residents and certain Native 
Corporations to obtain special use authorizations for visitor services 
on Conservation System Units of the Tongass and Chugach National 
Forests in Alaska (hereafter CSUs).
    (b) Except as may be specifically provided in this subpart, the 
regulations at subpart B shall apply to special use authorizations 
considered or issued under this subpart.
    (c) This subpart does not apply to the guiding of sport hunting and 
fishing.


Sec. 251.121  Definitions.

    In addition to the definitions in subpart B of this part, the 
following terms apply to this subpart:
    Best offer means the offer, as determined by the authorized 
officer, that best meets the selection criteria established in a 
prospectus soliciting specific visitor services in CSUs in National 
Forests in Alaska.
    Conservation System Unit (CSU) as it relates to the Tongass and 
Chugach National Forests in Alaska means a National Forest Monument or 
any unit of the National Wild and Scenic River System, National Trail 
System, or National Wilderness Preservation System.
    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 the 
authorization exercise of managerial authority over the actions and 
operations of the corporation, or election of a majority of the board 
of directors of the corporation. In the case of a partnership, limited 
partnership, joint venture or individual entrepreneurship, 
``controlling interest'' means a beneficial ownership of, or interest 
in, the business entity so as to permit the exercise of 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.
    Historical operator means a current holder of a valid special use 
authorization for providing revenue producing visitor services on a CSU 
under Forest Service jurisdiction that meets the following criteria:
    (1) On or before January 1, 1979, the holder was lawfully engaged 
in adequately providing visitor services in the same CSU;
    (2) The holder has continued to lawfully provide the same or 
similar types of visitor services within the same CSU; and
    (3) The holder is otherwise determined by the authorized officer to 
have a right to continue to provide the same or similar visitor 
services.
    Local area means that area within 100 miles of the location within 
a CSU where any visitor services covered by a single solicitation by 
the Forest Service are to be authorized.
    Local resident means the following:
    (1) For individuals. Those individuals who have lived within the 
local area for 12 consecutive months before issuance of a solicitation 
of applications for a use authorization for visitor services for a CSU 
and who maintain their primary, permanent residence and business within 
the local area and who whenever absent from this primary, permanent 
residence, have the intention of returning to it. Factors demonstrating 
the locations of an individual's primary, permanent residence and 
business may include, but are not limited to, the permanent address 
indicated on

[[Page 20145]]

licenses issued by the State of Alaska, tax returns, and voter 
registration.
    (2) 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''.
    Native Corporation has the same meaning as the term is defined in 
section 102(6) of the Alaska National Interest Lands Conservation Act 
(ANILCA).
    Preferred operator means a Native Corporation that is determined, 
pursuant to Sec. 251.124, to be ``most directly affected'' by 
establishment or expansion of the CSU, or a local resident, as defined 
in this section, who competes for a visitor service special use 
authorization under Sec. 251.123 of this subpart.
    Responsive offer is one that is timely received and meets the terms 
and conditions of the solicitation document.
    Visitor service means any service or activity for which persons who 
visit a CSU pay a fee, commission, brokerage or other compensation 
including such services as providing food, accommodations, 
transportation, tours and outfitting and guiding, except the guiding of 
sport hunting and fishing.


Sec. 251.122  Historical operator special use authorizations.

    (a) A historical operator has a right to continue to provide 
visitor services existing on or before January 1, 1979, in a CSU under 
appropriate terms and conditions contained in a special use 
authorization so long as such services are determined by the authorized 
officer to be consistent with the purposes for which the CSU was 
established. A historical operator may not operate without such as 
authorization.
    (b) Any person who qualifies as a historical operator under this 
subpart and who wishes to exercise the rights and preferences granted 
to historical operators under section 1307(a) of ANILCA must notify the 
authorized officer responsible for the CSU. In determining whether a 
person qualifies as a historical operator, the authorized officer has 
the discretion to determine on a case-by-case basis whether visitor 
services are the same or similar to those provided on or before January 
1, 1979.
    (c) Upon the authorized officer's determination that the person 
qualifies as a historical operator, the authorized officer shall amend 
the current special use authorization or issue a new special use 
authorization to identify that portion of the authorized services that 
are deemed to be historical operations. The special use authorization 
shall identify the location(s), type(s), frequency(ies), or volume of 
visitor services to be provided.
    (d) When a historical operator's special use authorization expires, 
the authorized officer shall offer to renew the special use 
authorization for the same or similar visitor services so long as the 
services provided under the previous special use authorization were 
adequate, the services remain consistent with the purposes for which 
the CSU was established or expanded, and the holder continues to 
possess the capability to provide the visitor services adequately.
    (1) If the operator accepts the renewal offer, the authorized 
officer shall issue a new special use authorization that clearly 
identifies the historical operations as required by paragraph (c) of 
this section.
    (2) If the authorized officer determines that it is necessary to 
reduce the visitor services to be provided by a historical operator, 
the authorized officer shall modify the historic operator's special use 
authorization to reflect the reduced services as follows:
    (i) If more than one historical operator provides services in the 
area where visitor service capacity is to be reduced, the authorized 
officer shall apportion the reduction among the historical operators, 
taking into account historical operating levels and such other factors 
as are relevant to achieve a proportionate reduction among the 
operators.
    (ii) If the reductions in visitor service capacity make it feasible 
to support only one operator in an area, the authorized officer shall 
select, through a competitive process that is limited to historical 
operators only, the operator to receive the special use authorization 
from among the historical operators.
    (e) Any of the following shall result in the loss of historical 
operator status:
    (1) Revocation of a special use authorization for historic types 
and levels of visitor services for failure to comply with the terms and 
conditions of the special use authorization;
    (2) A historical operator's declination of a special use 
authorization renewal offer made pursuant to paragraph (d) of this 
section;
    (3) A change in the controlling interest of the historical operator 
through sale, assignment, devise, transfer, or otherwise except as 
provided in paragraph (f) of this section; or
    (4) An operator's failure to provide the authorized services for a 
period of more than 24 consecutive months.
    (f) A change in the controlling interest of a historical operator 
that results only in the acquisition of the controlling interest by an 
individual or individuals, such as a child or sibling, who were 
personally engaged in the visitor service activities of the historical 
operator before January 1, 1979, shall not be deemed a change in the 
historical operator's controlling interest for the purpose of this 
subpart.
    (g) Nothing in this section shall prohibit the authorized officer 
from authorizing persons other than historical operators to provide 
visitor services in the same area, so long as historical operators 
receive authorization to provide visitor services at a level and scope 
equal to those they provided on or before January 1, 1979.
    (h) In the event that an authorized officer grants to a historical 
operator an increase in scope or level of visitor services from that 
provided on or before January 1, 1979, the historical operator has no 
right of preference for the increased amount of authorized services. If 
additional operations are authorized, the special use authorization 
shall clearly indicate that the additional amount is not subject to the 
historical operations preference.


Sec. 251.123  Preferred operator competitive special use authorization 
procedures.

    (a) The authorized officer shall publicly solicit offers to provide 
visitor services when the Forest Service determines the following:
    (1) There is a need for visitor services within the area of the 
CSU;
    (2) There is a need to limit authorized visitor use in the area 
and/or the number of authorized operators;
    (3) There is an opportunity for competitive bidding to provide such 
services; and
    (4) The proposed visitor services are consistent with the Forest 
Plan direction and all applicable laws and regulations.
    (b) In soliciting applications for special use authorizations, the 
authorized officer shall include the selection criteria in the 
prospectus describing the services to be provided. At a minimum, the 
authorized officer's selection of the most responsive offer shall be 
based on evaluation of the applicant's timely response to the following 
criteria:
    (1) The kind and quality of visitor service(s) to be provided;
    (2) The experience and qualifications required of the operator to 
demonstrate capability;
    (3) Applicant's financial resources and status; and
    (4) The amount of return to the Government.

[[Page 20146]]

    (c) To qualify as a preferred operator under this subpart, an 
applicant responding to a solicitation made under this section must be 
determined by the authorized officer to be a local resident as defined 
in Sec. 251.121 of this subpart, or the most directly affected Native 
Corporation by establishment or expansion of the CSU covered by the 
solicitation pursuant to Sec. 251.124 of this subpart.
    (d) A qualified preferred operator shall be given preference, 
pursuant to paragraph (e) of this section, over all other operators 
except as provided for historical operators in section 251.122. of this 
subpart.
    (e) If the best offer received in response to the solicitation is 
made by an applicant other than a preferred operator, then the 
preferred operator who made the best offer of all the preferred 
operators shall be given the opportunity to amend its offer to meet the 
terms and conditions of the best offer.
    (1) If the preferred operator amends its offer, the authorized 
officer shall award the special use authorization to the preferred 
operator, if the following conditions are met:
    (i) The authorized officer concludes the preferred operator's 
amended offer is substantially equal to that of the best offer; and
    (ii) The authorized officer determines the preferred operator is 
capable of carrying out the terms of the special use authorization.
    (2) The authorized officer shall award the special use 
authorization to the applicant who made the initial best offer in 
either of the following circumstances:
    (i) The authorized officer concludes that the preferred operator's 
amended offer is not substantially equal to the initial best offer; or
    (ii) The authorized officer concludes that the preferred operator's 
amended offer is substantially equal to the initial best offer, but the 
operator is not capable of carrying out the terms of the special use 
authorization.
    (f) An offer from a preferred operator under this subpart, in the 
form of a joint venture, shall be considered valid only when the offer 
documents to the satisfaction of the authorized officer that the 
preferred operator holds the controlling interest in the joint venture.


Sec. 251.124  Most directly affected Native corporation determination.

    (a) Before the award of the first special use authorization issued 
after the effective date of this subpart pursuant to Sec. 251.123 for a 
specific CSU, the authorized officer shall give notice to and provide 
an opportunity for Native Corporations interested in providing visitor 
services within the CSU to submit an application to be considered the 
Native Corporation most directly affected by the establishment or 
expansion of the CSU by or under the provisions of ANILCA. In giving 
notice of the application procedure, the authorized officer shall make 
clear that this is the only opportunity to apply for ``most directly 
affected'' status for that particular CSU.
    (1) At a minimum, an application from an interested Native 
Corporation shall include the following information:
    (i) Name, address, and phone number of the Native Corporation; date 
of incorporation; its articles of incorporation and structure; and the 
name of the applicable CSU and the solicitation that the Native 
Corporation is responding to; and
    (ii) Location of the corporation's population center or centers; 
and
    (iii) An assessment of the socioeconomic impacts, including changes 
in historical and traditional use and landownership patterns and their 
effects on the Native Corporation, resulting from the expansion or 
establishment of the applicable CSU by ANILCA; and
    (2) In addition to the minimum information required by paragraph 
(a)(1) of this section, Native Corporations may submit such additional 
information as they consider relevant.
    (b) Upon receipt of all applications from interested Native 
Corporations, the authorized officer shall determine the ``most 
directly affected'' Native Corporation considering the following 
factors:
    (1) Distance and accessibility from the corporation's population 
center and/or business address to the applicable CSU; and
    (2) Socioeconomic impacts, including changes in historical and 
traditional use and landownership patterns and their effects on Native 
Corporations resulting from the expansion or establishment of the 
applicable CSU; and
    (3) Information provided by Native Corporations and other 
information considered relevant by the authorized officer to the 
particular facts and circumstances related to the effects of the 
establishment or expansion of the applicable CSU.
    (c) In the event that more than one Native Corporation is 
determined to be equally affected within the meaning of this section, 
each such Native Corporation shall be considered a preferred operator 
under this subpart.
    (d) A corporation determined to be most directly affected for a CSU 
will maintain that status for all future visitor service solicitations.


Sec. 251.125  Preferred operator privileges and limitations.

    (a) Except as provided at Sec. 251.122(d)(2)(ii), preferred 
operators have preference over all other applicants in the issuance of 
special use authorizations pursuant to Sec. 251.123 of this subpart.
    (b) The preferences described in this section may not be sold, 
assigned, transferred, or devised, directly or indirectly.
    (c) If an operator qualifies as a local resident for any part of an 
area designated in the solicitation for a specific visitor service, in 
matters related solely to that solicitation, the operator shall be 
treated as a local resident for the entire area covered by that 
solicitation.
    (d) An offer from a preferred operator made in the form of a joint 
venture is considered valid, only if the offer documents to the 
satisfaction of the authorized officer, that the preferred operator 
holds the controlling interest in the joint venture.
    (e) Nothing in this subpart shall prohibit the authorized officer 
from issuing special use authorizations to other applicants within the 
CSU so long as the requirements of Sec. 251.123 are met.
    (f) A preferred operator has no preference within a National Forest 
in Alaska beyond that authorized by section 1307 of the Act and by 
Sec. 251.123 of this subpart.
    (g) Local residents and ``most directly affected'' Native 
Corporations have equal priority for consideration in providing visitor 
services.


Sec. 251.126  Appeals.

    Decisions related to the issuance of special use authorizations in 
response to written solicitations by the Forest Service or to the 
modification of special use authorizations to reflect historical use 
are subject to administrative appeal under subpart C of this part.

    Dated: March 26, 1997.
David G. Unger,
Associate Chief.
[FR Doc. 97-10698 Filed 4-24-97; 8:45 am]
BILLING CODE 3410-11-M