[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