National Park System Units in Alaska

DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 13

RIN 1024-AC19

National Park System Units in Alaska

AGENCY: National Park Service, Interior.

ACTION: Final rule.

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SUMMARY: These regulations will implement section 1307 of the Alaska

National Interest Lands Conservation Act of 1980 (ANILCA). This action

is necessary to establish procedures for administering the statutory

rights and preferences established by section 1307 for certain persons

to conduct revenue-producing visitor services in certain units of the

National Park System located in the State of Alaska. Particularly, this

rulemaking provides guidance in the solicitation, award and renewal of

Alaska visitor service authorizations in park areas.

EFFECTIVE DATE: This rule is effective November 18, 1996, except

Secs. 13.82-13.85 will become effective upon OMB approval of the

Information Collection requirements. A document will be published in

the Federal Register establishing an effective date for Secs. 13.82-

13.85.

FOR FURTHER INFORMATION CONTACT: Rebecca L. Rhea, Concessions

Management Analyst, Alaska System Support Office, National Park

Service, 2525 Gambell Street, Room 107, Anchorage, Alaska 99503-2892.

Phone: 907-257-2529.

SUPPLEMENTARY INFORMATION:

Background

ANILCA (16 U.S.C. 3101 et seq.) was signed into law on December 2,

1980.

[[Page 54335]]

Section 1307 of ANILCA (16 U.S.C. 3197) contains two provisions

concerning persons and entities who are to be given special rights and

preferences with respect to providing ``visitor services'' in certain

lands under the administration of the Secretary of the Interior as part

of the National Park System. The term ``visitor service'' is defined in

section 1307 as ``any service made available for a fee or charge to

persons who visit a conservation system unit, including such services

as providing food, accommodations, transportation, tours and guides,

excepting the guiding of sport hunting and fishing.'' Subsection (a) of

section 1307 states as follows:

Notwithstanding any other provision of law, the Secretary [of

the Interior], under such terms and conditions as he determines are

reasonable, shall permit any persons who, on or before January 1,

1979, were engaged in adequately providing any type of visitor

service [as defined in subsection (c)] within any area established

as or added to a conservation system unit to continue providing such

type of service and similar types of visitor services within such

area if such service or services are consistent with the purposes

for which such unit is established or expanded (16 U.S.C. 3197).

Subsection (b) of section 1307 states as follows:

Notwithstanding provisions of law other than those contained in

subsection (a), in selecting persons to provide (and in the

contracting of) any type of visitor service for any conservation

system unit, except sport fishing and hunting guiding activities,

the Secretary--

(1) shall give preference to the Native Corporation which the

Secretary determines is most directly affected by the establishment

or expansion of such unit by or under the provisions of this Act;

(2) shall give preference to persons whom he determines, by

rule, are local residents * * * (16 U.S.C. 3197).

Subsection (b) also provides to Cook Inlet Region, Incorporated

(CIRI), in cooperation with village corporations within the Cook Inlet

Region when appropriate, the right of first refusal to provide new

visitor services within that portion of Lake Clark National Park and

Preserve that is located within the Cook Inlet Region.

In general, in passing section 1307 of ANILCA, Congress recognized

that the creation and expansion of Conservation System Units (CSUs) in

Alaska would have an impact on historical operators, Native

Corporations and local residents. Therefore, historical operators,

Native Corporations and local residents were provided with preferences

to benefit from the opportunity to provide desirable visitor services

in the CSUs. It is the intent of these regulations to clarify and

implement the preferences contained in section 1307 of ANILCA.

The National Park Service (NPS) was created by Congress in 1916 to

manage the growing number of park areas. The purpose of the NPS as

stated in the NPS Organic Act of August 25, 1916, is ``to conserve the

scenery and the natural and historic objects and the wildlife therein,

and to provide for the enjoyment of the same in such a manner and by

such means as will leave them unimpaired for the enjoyment of future

generations'' (16 U.S.C. 1). Additionally, Congress has declared that

the National Park System should be, ``preserved and managed for the

benefit and inspiration of all the people of the United States'' (16

U.S.C. 1a-1). The NPS seeks both to preserve and to provide for the

public enjoyment of significant aspects of the Nation's natural and

cultural heritage.

To provide park visitors necessary and appropriate facilities and

services to enjoy park areas, Congress established a concessions

program in the NPS through the Concessions Policy Act of 1965 (16

U.S.C. 20). Regulations implementing the Concessions Policy Act are

found in 36 CFR Part 51.

The Concessions Policy Act authorizes the Secretary of the Interior

or designee to enter into concessions contracts or issue permits to

qualified concessioners. The NPS may provide ``necessary and

appropriate'' visitor facilities and services for the public through

these contracts and permits. These services include a wide variety of

commercial visitor services from backcountry guiding to hotel

operations. All are provided by private corporations, partnerships,

individuals or other entities under contract with the NPS. Their

purpose is to provide park visitors with the services and

accommodations that are necessary and appropriate for the enjoyment of

America's national parks. The NPS determines what is necessary and

appropriate through its planning process. Visitor needs vary with the

purposes of the various park areas and the circumstances at the time of

contracting. As applicable, the Concessions Policy Act grants a

preference in renewal of concession authorizations to those

concessioners who have performed contractual obligations to the

satisfaction of the Secretary. In addition, the NPS authorizes certain

categories of visitor services through incidental business permits.

Holders of the permits do not obtain any preference in renewal. These

regulations describe the relationship between section 1307 provisions

and NPS concession permits, contracts and incidental business permits.

Summary of Public Comments

The proposed rule, which was published in the Federal Register on

April 25, 1995 (60 FR 20374), afforded the public an initial comment

period of 60 days from April 25 to June 26, 1995. In response to

numerous requests, the comment period was reopened an additional 60

days from July 13 to September 11, 1995. The U.S. Fish and Wildlife

Service (FWS) simultaneously published similar proposed rules

implementing section 1307. Joint public meetings were held in Anchorage

and Fairbanks by the NPS and the FWS. The NPS also held meetings in

Gustavus, Juneau and Yakutat. All written and all oral comments

received were shared between the NPS and the FWS. The NPS received 46

written comments. The FWS received 28 comments, 20 which duplicated

comments sent to the NPS. Of the 46 written comments received by the

NPS, 4 were from individuals, 14 were from Native corporations or

Native villages, 19 were from concessioners or permittees, 4 were from

special interest groups, 1 was from State Government, 2 were from the

Federal Government and 2 were from other businesses. After considering

all public comments, the NPS has decided to revise the proposed rule

and to proceed with the final rule. The following analysis applies only

to those comments that related to the NPS proposed rule and are

discussed on a section-by-section basis.

Analysis of Public Comments

General Comments

There were a number of general comments. Some comments questioned

the relationship between Native corporations and the Indian Self-

Determination Act. The Indian Self-Determination Act does not apply to

the provision of visitor services on Federal lands. One commenter

suggested that Glacier Bay vessels should be excluded from section

1307. However, the law only excludes sport fishing and hunting. There

were comments about the relationship between section 1307 and the

Concessions Policy Act and the impact of section 1307 on existing

satisfactory concessioners. These relationships are described in the

final regulations. A number of commenters objected to the rule being

applied retroactively to January 1, 1979, with criteria that were

previously unknown to operators. However, the NPS cannot alter the

effective date of section 1307 and believes that the provisions of

these regulations, to the extent they may be considered retroactive,

are required by ANILCA and, in any event, otherwise are fair in light

of NPS administration of

[[Page 54336]]

section 1307 since its enactment. This issue is discussed further below

in connection with transfers in controlling interests of historical

operators.

The NPS considers that the preferences established in section 1307

take precedence over the preferential right of renewal granted NPS

concessioners by 16 U.S.C. 20 et seq. With respect to revenue producing

visitor services, section 1307 takes precedence over all other laws,

including those for awarding or renewing concessions contracts or

annual funding agreements under the Tribal Self-Governance Act. Several

commenters expressed concerns that giving preferences does not always

allow the selection of the best qualified provider and that entities

without a preference may be discouraged from submitting proposals to

provide visitor services. The NPS, in drafting these regulations, has

taken into account the objectives of quality service and competition,

as well as the legal rights provided by section 1307.

In addition to the specific changes discussed section-by-section,

the NPS has made a number of editorial changes to the text of the

proposed regulations for the purposes of clarity and consistency.

Section 13.80 Applicability and Scope

A new sentence has been added to Sec. 13.80(b) to clarify that,

although section 1307 gives preferences in the issuance of visitor

services authorizations, it does not require that such authorizations

be issued except as otherwise mandated by statute. For example, even

after the selection of a visitor service authorization has been made,

the NPS may determine that the authorization is inappropriate for

resource protection or other reasons, in which case it may choose not

to execute the authorization. Likewise, the NPS retains the authority

to terminate executed authorizations under their terms. In this same

connection, a sentence has been added that clarifies that nothing in

this subpart requires the NPS to issue a visitor services authorization

to a person who is not capable of carrying out the terms and conditions

of the authorization in a satisfactory manner. Finally, a new paragraph

(c) has been added to state that, as set forth in section 1307, these

regulations do not apply to the guiding of sport hunting or fishing.

Section 13.81 Definitions

Section 13.81 provides a number of definitions for terms used in

the regulations. A definition of ``best offer'' has been included for

clarity. The definition of ``similar visitor services'' has been

deleted since the term is explained in the body of the regulations. The

term ``persons'', as used in these regulations, is defined in 36 CFR

1.4.

Some comments were objections that it would be unfair to apply

several of the definitions without basis in law. In response to the

comments, some definitions were changed. One commenter stated that the

definition of controlling interest should be ``actual exercise'' of

management authority. The definition was not changed as the NPS

believes it properly implements the intentions of section 1307 with

respect to the complex issue of degrees of involvement in a business

sufficient to warrant recognition of the rights provided by section

1307.

In response to comments, the continuity of service criteria was

dropped in the definition of historical operator. Continuity of service

requirements are discussed in the main body of the regulations. In

addition, a phrase has been added to the definition of historical

operator to explain that a statute besides ANILCA may declare a person

to be a historical operator (as is the case with respect to one Glacier

Bay National Park cruise ship concessioner). Finally, the definition

has been modified to explain that historical operators are to conduct

their activities pursuant to a valid visitor services authorization.

A number of commenters objected to the definition of local area and

thought that the size of a community should have no bearing on the

definition of local. Some comments opposed the 35-mile straight-line

boundary since it would exclude some communities that have historic

ties to certain park areas. Due to the size of the park areas, the NPS

also recognized that under the proposed definition, a local resident

could be far removed from the geographic area of the area of a park

where a service is to be provided.

Consequently, the definition of local area has been changed to an

area within 100 miles of the location within the park area where the

service is authorized to be provided, and the community population

limit was dropped. Depending upon the service, the local area may

include the entire park area or a portion of the park area. The 100-

mile radius is consistent with Tier 2 of the recommendations of the

Alaska Land Use Council for defining local resident.

The definitions under local resident were rewritten for clarity. In

response to a comment asking for time restrictions to qualify an

individual as a local resident, a criterion was added that an

individual must have lived within the local area a minimum of 12

consecutive months. This prohibits an individual from moving into a

local area and immediately qualifying as a local resident.

Some commenters objected to the definition of local corporation

that required both the corporate headquarters to be located in the

local area and a majority of shareholders to qualify individually as

local residents. The definition of local corporation was changed to a

corporation in which the controlling interest is owned by individual

local residents. In addition, the definition has been clarified to

state, with respect to non-profit corporations, that in order to be

considered local, a majority of its board members and officers must

qualify as local residents. This definition maintains the statutory

intent of providing a preference to persons who have a strong presence

in the local community.

The definition of preferred operator was reworded to more closely

track statutory language. For clarification, the definition of

responsive offer was added using the definition at 36 CFR 51.5(c). The

definition of similar services was deleted as being unnecessary, as the

term is defined in the body of the regulations. A new definition,

visitor services authorization, has been added for clarity to encompass

in one term all types of instruments the NPS may use to authorize

visitor services.

Section 13.82 Historical Operators

These provisions implement subsection (a) of section 1307 and

permit persons who were adequately providing visitor services in

applicable areas in Alaska prior to January 1, 1979, to continue to do

so under reasonable terms and conditions. Such persons are referred to

as ``historical operators.'' The paragraphs in this section were

rearranged for clarity.

Section 13.82 explains that the existence of a right to continue to

provide visitor services under subsection 1307(a) is not an unlimited

right. The right is subordinate to the management of the park area 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 be authorized to provide services similar to

those provided before January 1, 1979, if acceptable to the NPS as

consistent with the purposes of the park and provided that the similar

services are not in excess of those provided by the concessioner as of

January 1, 1979. In addition, the rights of a historical operator are

considered terminated

[[Page 54337]]

upon a change in the controlling interest in the historical operator.

This provision is intended to implement the ``grandfather clause''

purposes of section 1307(a) while not permitting the sale or transfer

of these ``grandfather rights'' to third parties consistent with the

intentions of section 1307.

Persons who, on or before January 1, 1979, were engaged in

adequately providing any type of visitor service within a park area in

Alaska, who have continued to provide that visitor service and who have

retained controlling interest in the business are considered historical

operators under these regulations.

Some commenters objected to the requirement that the rights of

historical operators would terminate if there was a break in service of

more than 11 consecutive months since there could be a number of

legitimate reasons why the business could not operate for one season.

This requirement was changed to a break in service of no more than 24

consecutive months. This will allow an operator to miss one season of

operation without jeopardizing the permit or contract unless the terms

of the permit or contract require the service to be provided.

Several commenters expressed concerns about the loss of historic

rights if there has been a change in controlling interest since January

1, 1979. There were concerns about transferring a permit to a surviving

spouse, to another partner, the impact of incorporating and bringing in

additional stockholders and the impact of selling a corporation to a

different parent corporation removed from the daily operation of the

business.

In response, with respect to individual historic operators, a new

provision has been added to Sec. 13.82(e) that if a change in a

controlling interest only results in the acquisition of the controlling

interest by individuals who were personally engaged in that visitor

service activity before January 1, 1979, historical operator rights

will continue to be recognized. For example, an individual (qualified

as an historical operator) holding a visitor services authorization may

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 operator's business before January 1, 1979.

The rules have not been changed with respect to corporations. The

intention of the regulations in this regard, consistent with NPS'

understanding of the intentions of section 1307, is to treat

corporations in a similar manner as individuals, with respect to the

consequences of a change in ownership. To do otherwise would result in

an anomaly. That is, the historical rights of individuals would

necessarily lapse as a matter of law upon the individual's death or

sale of the business under the terms of section 1307, while a corporate

historical operator would retain the statutory right forever, as long

as the corporate entity remained in existence, even though the actual

ownership of the corporation passes to persons who had no involvement

in the business before January 1, 1979. These regulations, consistent

with the intentions of section 1307 and in the interests of fairness,

provide individuals who provided visitor services prior to January 1,

1979, the same rights to continue those services regardless of whether

the form of business was a sole proprietorship, partnership or

corporation. Section 1307 was intended to ``grandfather'' persons who

were engaged in providing visitor services before January 1, 1979, so

as not to arbitrarily close businesses as a result of the passage of

ANILCA. However, the statute, consistent with its intentions, does not

provide for the sale or transfer of the statutory rights it creates.

Commenters expressed concerns about applying the controlling

interest requirement retroactively to January 1, 1979. This date,

however, is clearly stated in section 1307, and the NPS has advised

interested persons of these requirements in the administration of

visitor services authorizations since the passage of ANILCA.

Also in response to comments, a new provision has been added which

says historical operators may apply for a visitor services

authorization in a joint venture with other persons, but that

historical operating rights will only be recognized if the historical

operator has the controlling interest in the joint venture. This

provision allows business flexibility without compromising the

statutory intention of section 1307.

Section 13.83 Preferred Operators

This section implements subsection (b) of section 1307 (except with

respect to CIRI) and grants a preference (generally defined for the

purpose of these regulations as a right to meet the terms of the best

offer received by the NPS in a public solicitation process for visitor

services) to certain individuals and corporations to provide visitor

services in Alaska park areas. The section has been modified to clarify

that it takes effect only when there is a competitive award of a

visitor services authorization.

Section 13.83 of the regulations applies to the two categories of

persons to be given a preference pursuant to section 1307(b) of ANILCA,

collectively referred to as preferred operators. The first category of

preferred operator is the Native corporation determined by the Director

to be most directly affected by the establishment or expansion of a

park area.

The second category of preferred operator consists of persons who

are determined by the Director to be local residents of any park area,

whether or not it existed before ANILCA. A local resident as defined in

these regulations means a person living within 100 straight-line miles

of the location within a park area where the service is to be provided.

Section 13.83 establishes a procedure for the solicitation and

award of visitor service authorizations that incorporates the rights of

preferred operators under section 1307(b). In order to exercise the

preference, a preferred operator must submit a responsive offer under

the terms of a public solicitation. Some commenters said it was unfair

to allow all preferred operators the opportunity to match the better

offer and that the rule as written would discourage everyone except

preferred operators from submitting proposals. In response to those

concerns, the regulation has been amended to explain that if, after all

the responsive offers are reviewed, a preferred operator has submitted

an offer that is substantially equal to or better than any other offer,

the preferred operator will be awarded the contract or permit. In

addition, redundant express requirements regarding capability have been

deleted from this section.

It was apparent from the public comments that there was some

confusion about the relationship between the two categories of

preferred operators. Local residents and most directly affected Native

corporations have equal preference in the award of a visitor service

authorization. A statement to this effect was added to 13.83(c).

As with historical operators, the NPS does not believe section

1307(b) intended to provide preferred operators with an exclusive right

to provide visitor services. Section 13.83 permits other persons to

provide visitor services in park areas in a manner consistent with the

preference of preferred operators. Accordingly, public solicitations

for section 13.83 purposes will generally be the public solicitation

used for general concession authorizations under 36 CFR Part 51.

Section 13.83 (b) was changed to read that an amended offer from a

preferred operator must substantially equal the terms of the best offer

rather than meet

[[Page 54338]]

the terms of the best offer. This change is consistent with 36 CFR Part

51.

Some commenters questioned why a Native corporation was required to

submit additional information in Section 13.83(d) that was not required

of local corporations. This was not the intention of the proposed rule.

Section 13.83(d) was rewritten to require that Native corporations and

local corporations both must document their controlling interest in the

joint venture making the offer to provide a commercial service. This

change addresses the concerns of commenters who where opposed to

allowing a preferred operator to serve as a front for another business

entity.

Finally, paragraph (d) has been amended, in response to comments,

to allow a preferred operator to submit an offer in the form of a joint

venture, as long as the preferred operator has a controlling interest

in the joint venture. This provides appropriate business flexibility

without compromising the intentions of section 1307.

Section 13.84 Preference to Cook Inlet Region, Incorporated

This section describes the right of first refusal granted by

section 1307(b) to Cook Inlet Region, Incorporated (CIRI) to provide

new visitor services within that portion of Lake Clark National Park

and Preserve that is within the boundaries of the Cook Inlet Region. A

number of changes were made in response to comments received from CIRI.

The comma before ``when appropriate'' was deleted to be consistent with

section 1307. The regulation was modified to state that the NPS is to

solicit competitive offers as the first step in the possible exercise

of CIRI's right of first refusal. The 90-day deadline for CIRI to make

a responsive offer, as specified in section 1307, was added. The

requirement to document total ownership in the business entity making

the offer was changed to documentation of controlling interest by CIRI,

in cooperation with village corporations within the Cook Inlet Region

when appropriate. The requirement to document controlling interest is

consistent with Sec. 13.83(d) as rewritten. Kijik Corporation expressed

concerns about this section since they have land within the same

region. This section of the rule was written to match the language in

section 1307 as closely as possible.

Section 13.85 Most Directly Affected Native Corporation Determination

This section establishes procedures and criteria for determining

which Native corporation was most directly affected by the

establishment or expansion of a park area and accordingly is a

preferred operator with respect to that park area. Each Native

corporation has the opportunity to be considered for a determination of

``most directly affected.'' The Director's ``most directly affected''

Native corporation decision or appeal decision is applicable for all

future visitor services for that park or preserve. However, a new

sentence has been added to Sec. 13.85 to permit Native corporations

that did not apply for ``most affected'' status at earlier

opportunities to apply for ``equally affected'' Native corporation

status in connection with subsequent visitor services authorizations.

The word ``new'' in 13.85(a) was deleted. This rule applies to all

visitor services in park areas, not just to new services. Several

comments received from Native corporations objected to some of the

criteria used to determine most directly affected. This section lists

criteria considered, but is not all-inclusive. Nor are the criteria

listed in priority order. The NPS wants to afford the opportunity for

Native corporations and Native villages to provide information

pertinent to making this determination. Under the application section,

a provision was added to allow a Native corporation the opportunity to

submit any information it considers relevant in making the ``most

directly affected'' determination. Under the socioeconomic impacts

criteria, consideration for historic and traditional uses of park areas

and land-use patterns by Native corporations was added.

Some commenters objected to the criteria concerning ownership of

land. It is not necessary for a Native corporation to own surface acres

within and adjoining a Conservation System Unit in order to qualify as

``most directly affected.'' Land ownership is one of several criteria

used in making the determination. The regulation has been modified in

this regard, and, has been modified to explain that in making such

determinations, the NPS may take into account other information

considered relevant and require an applicant to submit additional

information when appropriate. It is the intention of the NPS to use a

public process to make these determinations.

Section 13.86 Appeal Procedures

This section establishes procedures and criteria under which people

who believe they have not been provided section 1307 rights under this

subpart may appeal to the Director for a final administrative

determination in this regard. In response to comments, and in

accordance with policy, this section was changed to allow an appeal to

be made to the next higher level of authority in the NPS which is the

Director.

Paperwork Reduction Act

The collections of information contained in Secs. 13.82-13.85 of

this rule are for the purposes of preparing offers in response to

contract solicitations pursuant to 36 CFR Part 51, and have previously

been approved by the Office of Management and Budget under 44 U.S.C.

3501 et seq. and assigned clearance number 1024-0125. This approval

expired in January 1996. However, OMB has given emergency approval to

the NPS for the collection of information under the same authorization

number for the basic contracting program for a limited period of time.

The NPS has submitted the necessary documentation to OMB requesting 3

year approval for the collection of information for all areas covered

by this rule. A document will be published in the Federal Register

establishing an effective date for Secs. 13.82-13.85 when that approval

is received from OMB.

The NPS is advertising the availability of concession opportunities

within park areas, requiring that parties interested in being awarded a

concession contract submit offers to provide the necessary facilities

and services. The public reporting burden for the collection of

information in this instance is estimated to be 480 hours for large

operations and 240 hours for small operations, including the time for

reviewing instructions, searching existing data sources, gathering and

maintaining the data needed and completing and reviewing the collection

of information. The request for the collection of information contained

in these sections has been submitted to the Office of Management and

Budget (OMB) under 44 U.S.C. 3501 et seq. for approval. The collection

of this information will not be required until it has been approved by

OMB.

Send comments regarding this burden estimate or any other aspect of

this collection of information, including suggestions for reducing the

burden of these information collection requests, to Information

Collection Officer, National Park Service, 800 North Capitol Street,

Washington, D.C. 20013; and the Office of Management and Budget, Office

of Information and Regulatory Affairs, Attention: Desk Officer for

Department of the Interior (1024-0125), Washington, D.C. 20503.

[[Page 54339]]

Compliance With Other Laws

This rule was reviewed by the Office of Management and Budget under

Executive Order 12866. It was determined that this document will not

have a significant economic effect on a substantial number of small

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

The economic effects of this rulemaking are local and negligible.

The NPS has determined and certifies pursuant to the Unfunded

Mandates Reform Act, 2 U.S.C. 1502 et seq., that this proposed rule

will not impose a cost of $100 million or more in any given year on

local, State or tribal governments, or private entities.

The Regulatory Flexibility Act further requires the preparation of

flexibility analysis for rules that will significantly affect a

substantial number of small entities including small businesses,

organizations, or governmental jurisdictions. Local visitor service

providers, exercising their right under Section 1307(b) of ANILCA, will

benefit more than companies without the preference. This preference

will have a positive impact on the local areas by increasing the

economic base of these communities. This impact, while important in

relation to the total economic level of the local area, is very small

in actual dollar value. Therefore, this rule would have no

``significant'' economic impact on the local communities or local

governmental entities. The NPS has determined that this rulemaking will

not significantly affect the quality of human environmental health and

safety because it is not expected to:

(a) Increase public use to the extent of compromising the nature

and character of the area or causing physical damage to it;

(b) Introduce incompatible uses which might compromise the nature

and characteristics of the area, or cause physical damage to it;

(c) Conflict with adjacent ownerships of land uses; or

(d) Cause a nuisance to adjacent owners or occupants.

Based upon this determination, this rulemaking is categorically

excluded from the procedural requirements of the National Environmental

Policy Act (NEPA) by Departmental guidelines in 516 DM 6 (49 FR 21438).

As such, neither an environmental assessment (EA) nor an environmental

impact statement (EIS) has been prepared.

List of Subjects in 36 CFR Part 13

Alaska, National parks, Reporting and recordkeeping requirements.

In consideration of the foregoing, 36 CFR Chapter I is amended as

follows:

PART 13--NATIONAL PARK SYSTEM UNITS IN ALASKA

1. The authority citation for part 13 continues to read as follows:

Authority: 16 U.S.C. 1, 3, 462(k), 3101 et seq.; Sec. 13.65 also

issued under 16 U.S.C. 1a-2(h), 20, 1361, 1531, 3197.

2. Section 13.2 is amended by redesignating paragraph (e) as

paragraph (f), and a new paragraph (e) is added to read as follows:

Sec. 13.2 Applicability and scope.

* * * * *

(e) Subpart D of this part 13 contains regulations applicable to

authorized visitor service providers operating within certain park

areas. The regulations in subpart D of this part amend in part the

general regulations contained in this chapter.

* * * * *

3. In part 13, a new Subpart D is added to read as follows:

Subpart D--Special Visitor Services Regulations

Sec.

13.80 Applicability and scope.

13.81 Definitions.

13.82 Historical operators.

13.83 Preferred operators.

13.84 Preference to Cook Inlet Region, Incorporated.

13.85 Most directly affected Native Corporation.

13.86 Appeal procedures.

13.87 Information collection.

Subpart D--Special Visitor Services Regulations

Sec. 13.80 Applicability and scope.

(a) Except as otherwise provided for in this section, the

regulations contained in this part apply to visitor services provided

within all national park areas in Alaska.

(b) The rights granted by this subpart to historical operators,

preferred operators, and Cook Inlet Region, Incorporated are not

exclusive. The Director may authorize other persons to provide visitor

services on park lands. Nothing in this subpart shall require the

Director to issue a visitor services authorization if not otherwise

mandated by statute to do so. Nothing in this subpart shall authorize

the Director to issue a visitor services authorization to a person who

is not capable of carrying out its terms and conditions in a

satisfactory manner.

(c) This subpart does not apply to the guiding of sport hunting or

sport fishing.

Sec. 13.81 Definitions.

The following definitions apply to this subpart:

(a) Best offer means a responsive offer that best meets, as

determined by the Director, the selection criteria contained in a

competitive solicitation for a visitor services authorization.

(b) 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 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.

Controlling interest in the case of a partnership, limited partnership,

joint venture, or individual entrepreneurship, means a beneficial

ownership of or interest in the entity or its capital 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

management authority over the actions or operations of the business.

(c) Director means the Director of the National Park Service or an

authorized representative.

(d) Historical operator, except as otherwise may be specified by a

statute other than ANILCA, means the holder of a valid written

authorization from the Director to provide visitor services within a

park area that:

(1) On or before January 1, 1979, was lawfully engaged in

adequately providing such visitor services in the applicable park area;

(2) Has continued, as further defined in Sec. 13.82, to lawfully

provide that visitor service since January 1, 1979, without a change in

controlling interest; and

(3) Is otherwise determined by the Director to have a right to

continue to provide such services or similar services pursuant to

Sec. 13.82.

(e) Local area means an area in Alaska within 100 miles of the

location within the park area where any of the applicable visitor

services is authorized to be provided.

(f) Local resident means:

(1) For individuals. Those individuals who have lived within the

local area for 12 consecutive months before issuance of a solicitation

of offers for a visitor services authorization for a park area and who

maintain their primary, permanent residence and business within the

local area and whenever absent from this primary, permanent residence,

have the intention of returning to it. Factors demonstrating

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the location of an individual's primary, permanent residence and

business may include, but are not limited to, the permanent address

indicated on licenses issued by the State of Alaska, tax returns and

voter 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 subpart. For non-profit

corporations a majority of the board members and a majority of the

officers must qualify individually as local residents.

(g) Native Corporation means the same as defined in section 102(6)

of ANILCA.

(h) Preferred operator means a Native Corporation that is

determined under Sec. 13.85 to be ``most directly affected'' by the

establishment or expansion of a park area by ANILCA, or a local

resident as defined in this subpart.

(i) Responsive offer is one that is timely received and meets the

terms and conditions of a solicitation for a visitor services

authorization.

(j) Visitor services authorization is a written authorization from

the Director to provide visitor services in a park area. Such

authorization may be in the form of a concession permit, concession

contract, or other document issued by the Director under National Park

Service policies and procedures.

Sec. 13.82 Historical operators.

(a) A historical operator will have a right to continue to provide

visitor services in a park area under appropriate terms and conditions

contained in a visitor services authorization issued by the Director as

long as such services are determined by the Director to be consistent

with the purposes for which the park area was established. A historical

operator may not operate without such an authorization. The

authorization will be for a fixed term. Failure to comply with the

terms and conditions of the authorization will result in cancellation

of the authorization and consequent loss of historical operator rights

under this subpart.

(b) Nothing in this subpart will prohibit the Director from

permitting persons in addition to historical operators to provide

visitor services in park areas at the Director's discretion as long as

historical operators are permitted to conduct a scope and level of

visitor services equal to those provided before January 1, 1979, under

terms and conditions consistent with this subpart. A historical

operator may be permitted by the Director under separate authority to

increase the scope or level of visitor services provided prior to

January 1, 1979, but no historical operating rights will be obtained in

such increase.

(c) If a historical operator applies for a visitor services

authorization in the form of a joint venture, the application will not

be considered as validly made unless the historical operator

demonstrates, to the satisfaction of the Director, that it has the

controlling interest in the joint venture.

(d) A historical operator may apply to the Director for an

authorization or amended authorization to provide visitor services

similar to those it provided before January 1, 1979. The Director will

grant the request if such visitor services are determined by the

Director to be:

(1) Consistent with the protection of park resources and the

purposes for which the park area was established;

(2) Similar in kind and scope to the visitor services provided by

the historical operator before January 1, 1979; and

(3) Consistent with the legal rights of any other person.

(e) When a historical operator's visitor services authorization

expires, and if the applicable visitor services continue to be

consistent with the purposes for which the park area was established as

determined by the Director, the Director will offer to renew the

authorization for a fixed term under such new terms and conditions as

the Director determines are in the public interest.

(f) If the Director determines that authorized visitor services

must be curtailed or reduced in scope, level, or season to protect park

resources, or for other purposes, the Director will require the

historical operator to make such changes in visitor services. If more

than one historical operator providing the same type of visitor

services is required to have those services curtailed, the Director

will establish a proportionate reduction of visitor services among all

such historical operators, taking into account historical operating

levels and other appropriate factors so as to achieve a fair

curtailment of visitor services among the historical operators. If the

level of visitor services must be so curtailed that only one historical

operator feasibly may continue to provide the visitor services, the

Director will select one historical operator to continue to provide the

curtailed visitor services through a competitive selection process.

(g) Any of the following will result in loss of historical operator

status:

(1) Revocation of an authorization for historic types and levels of

visitor services for failure to comply with the terms and conditions of

the authorization.

(2) A historical operator's declination of a renewal of the

authorization 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 by any other means,

direct or indirect. 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 who were

personally engaged in the visitor services activities of the historical

operator before January 1, 1979, will not be deemed a change in the

historical operator's controlling interest for the purposes of this

subpart.

(4) A historical operator's failure to provide the authorized

services for more than 24 consecutive months.

(h) The Director may authorize other persons to provide visitor

services in a park area in addition to historical operators.

Sec. 13.83 Preferred operators.

(a) In selecting persons to provide visitor services for a park

area, the Director will, if the number of visitor services

authorizations is to be limited, give a preference (subject to any

rights of historical operators or CIRI under this subpart) to preferred

operators determined qualified to provide such visitor services.

(b) In such circumstances, the Director will publicly solicit

competitive offers for persons to apply for a visitor services

authorization, or the renewal of such an authorization, to provide such

visitor services pursuant to 36 CFR part 51 and/or other National Park

Service procedures. All offerors, including preferred operators, must

submit a responsive offer to the solicitation in order to be considered

for the authorization. If the best offer from a preferred operator is

at least substantially equal to the best offer from a non-preferred

operator, the preferred operator will receive authorization. If an

offer from a person besides a preferred operator is determined to be

the best offer (and no preferred operator submits a responsive offer

that is substantially equal to it), the preferred operator who

submitted the best offer from among the offers submitted by preferred

operators will be given the opportunity, by amending its offer, to meet

the terms and conditions of the best offer received. If the amended

offer of such a preferred operator is considered by the Director as at

least substantially equal to the best offer, the preferred operator

will receive the visitor service authorization.

[[Page 54341]]

If a preferred operator does not amend its offer to meet the terms and

conditions of the best offer, the Director will issue the authorization

to the person who submitted the best offer in response to the

solicitation.

(c) The Native Corporation(s) determined to be ``most directly

affected'' under this subpart and local residents have equal

preference. The rights of preferred operators under this section take

precedence over the right of preference that may be granted to existing

satisfactory National Park Service concessioners pursuant to the

Concessions Policy Act (16 U.S.C. 20) and its implementing regulations

and procedures, but do not take precedence over the rights of

historical operators or CIRI as described in this subpart.

(d) An offer from a preferred operator under this subpart, if the

offer is in the form of a joint venture, will not be considered valid

unless it documents to the satisfaction of the Director that the

preferred operator holds the controlling interest in the joint venture.

(e) Nothing in this subpart will prohibit the Director from

authorizing persons besides preferred operators to provide visitor

services in park areas as long as the procedures described in this

section have been followed. Preferred operators are not entitled by

this section to provide all visitor services in a park area.

(f) The preferences described in this section may not be sold,

assigned, transferred or devised, directly or indirectly.

Sec. 13.84 Preference to Cook Inlet Region, Incorporated.

(a) The Cook Inlet Region, Incorporated (CIRI), in cooperation with

village corporations within the Cook Inlet region when appropriate,

will have a right of first refusal to provide new visitor services

within that portion of Lake Clark National Park and Preserve that is

within the boundaries of the Cook Inlet region. In order to exercise

this right of first refusal, the National Park Service will publicly

solicit competitive offers for the visitor services authorization

pursuant to 36 CFR part 51 or other applicable National Park Service

procedures. CIRI must submit a responsive offer within 90 days of such

solicitation. If CIRI makes such an offer and is determined by the

Director to be capable of carrying out the terms and conditions of the

visitor services authorization, it will receive the authorization. If

it does not, the authorization may be awarded to another person

pursuant to usual National Park Service policies and procedures if

otherwise appropriate.

(b) The CIRI right of first refusal will have precedence over the

rights of preferred operators. An offer from CIRI under this section,

if the offer is in the form of a joint venture, will not be considered

valid unless it demonstrates to the satisfaction of the Director that

CIRI has a controlling interest in the joint venture.

(c) The CIRI right of first refusal may not be sold, transferred,

devised or assigned, directly or indirectly.

Sec. 13.85 Most directly affected Native Corporation.

(a) Before the award of the first visitor service authorization in

a park area to be made after the effective date of this subpart, the

Director will provide an opportunity for any Native Corporation

interested in providing visitor services within the applicable park

area to submit an application to the superintendent to be determined

the Native Corporation most directly affected by the establishment or

expansion of the park area by or under the provisions of ANILCA. An

application from an interested Native Corporation will include the

following information:

(1) Name, address, and phone number of the Native Corporation; date

of incorporation; its articles of incorporation and structure;

(2) Location of the corporation's population center or centers; and

(3) An assessment of the socioeconomic impacts, including

historical and traditional use and land-ownership patterns and their

effects on the Native Corporation as a result of the expansion or

establishment of the applicable park area by ANILCA.

(4) Any additional information the Native Corporation considers

relevant or the Director may reasonably require.

(b) Upon receipt of all applications from interested Native

Corporations, the Director will 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 park area; and

(2) Socioeconomic impacts, including historical and traditional use

and landownership patterns, on Native Corporations and their effects as

a result of the expansion or establishment of the applicable park area;

and

(3) Information provided by Native Corporations and other

information considered relevant by the Director to the particular facts

and circumstances of the effects of the establishment or expansion of

the applicable park area.

(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 will be considered as a preferred operator

under this subpart.

(d) The Director's most directly affected Native Corporation

determination applies to the award of all future visitor service

authorizations for the applicable park area. However, a Native

Corporation that did not apply for this determination in connection

with an earlier visitor services authorization may apply for a

determination that it is an equally affected Native Corporation for the

applicable park area in connection with a later visitor services

authorization. Such subsequent applications must contain the

information required by paragraph (a) of this section, and must be made

in a timely manner as described by the Director in the applicable

solicitation document so as not to delay the consideration of offers

for the visitor services authorization.

Sec. 13.86 Appeal procedures.

An appeal of the denial of rights with respect to providing visitor

services under this subpart may be made to the next higher level of

authority. Such an appeal must be submitted in writing within 30 days

of receipt of the denial. Appeals must set forth the facts and

circumstances that the appellant believes support the appeal. The

appellant may request an informal meeting to discuss the appeal with

the National Park Service. After consideration of the materials

submitted by the appellant and the National Park Service record of the

matter, and meeting with the appellant if so requested, the Director

will affirm, reverse, or modify the denial appealed and will set forth

in writing the basis of the decision. A copy of the decision will be

forwarded to the appellant and will constitute the final administrative

decision in the matter. No person will be considered to have exhausted

administrative remedies with respect to a denial of rights to provide

visitor services under this subpart until a final administrative

decision has been made pursuant to this section.

Sec. 13.87 Information collection.

(a) The information collection requirements contained in this part

have received emergency approval from the Office of Management and

Budget under 44 U.S.C. 3507, et seq., for the basic contracting program

under OMB clearance number 1024-0125. The information is being

collected as part of the process of reviewing the procedures

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and programs of State and local governments participating in the

national historic preservation program. The information will be used to

evaluate those procedures and programs. The obligation to respond is

required to obtain a benefit.

(b) The public reporting burden for the collection of information

is estimated to be 480 hours for large operations and 240 hours for

small operations, including the time for reviewing instructions,

searching existing data sources, gathering and maintaining the data

needed and completing and reviewing the collection of information,

including suggestions for reducing the burden, to Information

Collection Officer, National Park Service, 800 North Capitol Street,

Washington, D.C. 20013; and the Office of Management and Budget, Office

of Information and Regulatory Affairs, Attention: Desk Officer for the

Department of the Interior (1024-0125), Washington, D.C. 20503.

Dated: July 10, 1996.

George T. Frampton, Jr.,

Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 96-26279 Filed 10-17-96; 8:45 am]

BILLING CODE 4310-70-P