Regulations for the Administration of Special Use Permits on National Wildlife Refuges in Alaska

DEPARTMENT OF THE INTERIOR

50 CFR Part 36

RIN 1018-AD93

Regulations for the Administration of Special Use Permits on

National Wildlife Refuges in Alaska

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The Fish and Wildlife Service (Service) proposes these

regulations to clarify, update, and add to existing regulations for the

administration of all special use permits (permits) on national

wildlife refuges (refuges) in Alaska. These regulations are being

revised to provide the Service with the necessary regulatory authority

to administer the recent changes in the refuges' commercial visitor

service programs and to ensure proper and uniform management of all

permits on refuges in Alaska.

DATES: For written comments to be considered, they must be received by

December 31, 1996.

ADDRESSES: Comments should be sent to the Regional Director, Attention:

Daryle R. Lons, U.S.F.W.S., 1011 Tudor Rd., Anchorage, AK 99503.

FOR FURTHER INFORMATION CONTACT: Daryle R. Lons, telephone (907) 786-

3354.

SUPPLEMENTARY INFORMATION:

Background

The Alaska National Interest Lands Conservation Act of 1980

(ANILCA, Pub.L. 96-487; 94 Stat. 2371) and the National Wildlife Refuge

System Administration Act of 1966 (16 U.S.C. 668dd-668ee) authorize the

Secretary of Interior to prescribe regulations as necessary to

administer permits for compatible activities on refuges in Alaska.

The current regulations governing issuance of permits on units of

the National Wildlife Refuge System in Alaska, codified at 50 CFR

36.41, and originally published in the Federal Register in 1981 (46 FR

40192, August 7, 1981), and were amended in 1986 (51 FR 44794, December

12, 1986). Since then, the permit administration program on refuges in

Alaska has continued to evolve and grow in both size and complexity.

Although special use permits were issued for a variety of economic and

other privileged specialized uses, most permits issued on Alaska

Refuges are for commercial visitor service activities involving guide-

outfitters.

The primary purpose of the revised regulations is to provide better

guidance to Service employees and permittees concerning the

administration of commercial visitor service permits on refuges in

Alaska. Regulations implementing Section 1307 of ANILCA (see 60 FR

20374-20378, April 25, 1995) are currently being promulgated separately

from this rulemaking. The 1307 regulations will establish procedures

for granting historical use, Native Corporation, and local preferences

in the selection of commercial operators who provide visitor services

other than hunting and fishing guiding on refuges in Alaska. The 1307

regulations will supplement these proposed regulations.

Since the original regulations were promulgated, the program has

evolved due to significant changes in State of Alaska guiding

regulations and programs, increases in commercial visitor services on

refuges, and changes in the economic environment of the guiding

industry.

The most visible and significant change in the Service's

administration of refuge permits in Alaska was caused by the decision

of the Alaska Supreme Court in Owsichek v. State Guide Licensing and

Control Board, 763 P. 2 d 488 (Alaska 1988). That ruling overturned as

unconstitutional the State of Alaska's (State) system of assigning

exclusive big game guide areas. Until that ruling, the Service depended

upon the State's system for selecting big game guides for use areas

within refuge lands in Alaska. To allow the State an opportunity to

develop a constitutionally acceptable system that would meet Service

needs, the Service imposed a moratorium on issuance of permits to new

big game guide applicants. After a period of operating under this

moratorium, it became apparent that the State would not be able to

adopt and implement a program for selection of big game guide

outfitters which also would satisfy Service requirements and mandates.

Therefore, the Service developed its own interim program in order to

provide an equal opportunity for all registered big game guide-

outfitters to compete for permits to operate on refuges in Alaska.

After soliciting public comment on a draft system, and making revisions

based on those comments, an interim program was implemented in June

1992. Requests for proposals were then solicited and applicants were

notified of selections in January 1993. Successful applicants were

awarded 5-year permits effective July 1, 1993.

It appears unlikely the State will be able to implement a suitable

competitively-based system for selection of guides to start in time to

allow the reissuance of permits in 1998. These revised regulations will

provide the proper authority to allow the Service's big game guide

permitting program to continue.

Another factor in the evolution of the permit program has been the

significant increase in the number of permits being issued by the

refuges. Increase in

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demand for activities such as sport fish guiding and river floating

reached the maximum capacity on several refuges during the late 1980's

and early 1990's. Where the Service has had to limit the numbers of

permittees for certain activities, this was done by awarding permits

through competitive selection processes or by annually renewing permits

for existing permittees until a competitive selection process could be

implemented.

The existing system also needs to be modified to respond to the

changing economic conditions affecting commercial visitor services.

Guides started voicing their concerns in the late 1980's that changing

economic factors and business requirements made it more and more

difficult for commercial visitor service businesses to operate in a

professional and safe manner with the limited financial security

offered by annual permits. Guides have offered strong arguments that

they needed the financial security associated with longer term permits

and the right to transfer their permits when they retired. They also

sought survivor rights for family members and business partners. The

Service addressed their concerns in part by initiating programs to

issue competitively awarded, 5-year permits for sport fish guides on

Togiak National Wildlife Refuge in 1991 and for big game guide

outfitters on all Alaska refuges in 1992. Policy was also revised to

establish a right of survivorship.

As a result of the changes associated with awarding permits

competitively, there has been an apparent overall improvement in

permittee compliance with terms of permits, a reduction in impacts to

refuge resources and other users, and an increase in the quality of

visitor services provided to the public.

Early in 1995, Congress directed the Service to reinstate a short-

lived and effectively unimplemented 1992 policy directive issued by

former Secretary of the Interior Lujan. The 1992 policy required

competitively issued hunting and fishing guide permits to have 5-year

terms with 5-year renewal rights, allowed the privileges of the permits

to be transferable under certain conditions, and required existing

competitively awarded permits to be reissued consistent with the

policy. Shortly after Secretary of the Interior Babbitt's appointment,

he reviewed the 1992 policy and determined that it was inappropriate to

implement such policy without public notice and comment. Subsequently,

Congress supported a return to the earlier policy by including language

in a conference report (H.R. 1977), regarding the Department's Fiscal

Year 1996 appropriations, which directed the Service to reinstate the

1992 policy. The Service is complying with the directive by publishing

these proposed regulations. To meet the intent of the directive, the

proposed regulations also provide a phase-in period of the competitive

system to those permittees who have been conducting a commercial

activity in a refuge where the Service has historically limited the

numbers of permits issued. Although the Service has only been issuing

annual permits to these permittees, the Service, until recently, has

given them a reasonable expectation that they would continue to receive

permits each year as long as they provided good service and met the

terms of their permits. Many of these permittees have invested a

significant amount of time and money and built their lives around a

business which is dependent upon receiving a permit.

The proposed regulations make the 1992 policy applicable to all

competitively awarded commercial visitor service permits, not just

sport fishing and big game hunting guide permits and will provide the

Service with the proper regulatory authority to administer its permit

program. The existing regulations do not address the competitive award

of all big game guide-outfitter permits nor any of the other refuge-

specific, competitively awarded permits. In a recent lawsuit concerning

implementation of the big game guide-outfitter program, the U.S.

District Court's 1994 finding in favor of the Service was influenced by

the Service's commitment to developing regulations addressing

administration of the program.

In summary, the goals of this rulemaking are to provide the public,

commercial service industry, and Service employees with better guidance

for the administration of special use permits on refuges in Alaska; to

enhance the conservation of wildlife resources by establishing a system

in which operators have a more direct, continuing and long-term

interest in conserving and protecting these valuable resources; and to

obtain the most capable operators available to provide safe, high

quality services to the general public.

Analysis of Comments Received

Department of Interior policy is, whenever practicable, to afford

the public an opportunity to participate in the rulemaking process.

Prior to drafting these regulations, individual letters were sent to

all known interested parties and an advance notice was published in the

Federal Register which requested public comments on several issues,

including:

(1) Whether the existing 180-day period allowed for filing appeals

of decisions by refuge managers denying permit applications to the

Regional Director of the Service is appropriate under present

circumstances. By way of comparison, the appeal period in the rest of

the United States is 30 days (50 CFR 25.45);

(2) To what extent should the existing interim system used for

selecting big game guide-outfitters be made part of the regulations;

(3) Whether a different appeal procedure should be used where

permit awards are based upon a competitive selection system such as

that used to select big game guide-outfitters under the existing

interim system; and

(4) Whether provision should be made for suspending the Service's

big game guide-outfitter selection system if the State develops and

implements a system meeting Service requirements.

The Service received 14 letters in response to the advance notice.

These included one letter from the State of Alaska, two letters from

Alaska Native village councils, one letter from a national

environmental organization, one letter from a big game guiding

association, and nine letters from individuals. In addition, the

Service received additional informal follow up comments, mostly from

those who had responded to the advance notice with substantial

comments. The following is an analysis of the written comments received

in response to the notice:

Length of Appeal Period

Four comments were received on the appeal period. One respondent

stated the existing 180-day period is appropriate. Two respondents

recommended that the appeal period be shortened to 30-60 days. Stated

rationale included that a longer period places existing permittees in

an awkward position for a longer period than necessary and prevents

them from committing resources to their operations until the time for

filing an appeal has run or is resolved. One respondent recommended

extending the appeal period up to 1-year because guide-outfitters are

often in isolated areas without access to immediate communication. The

proposed regulations provide for a 45-day appeal period.

Incorporation of Big Game Guide-Outfitter Selection Process Into

Regulations

Six comments were received on making the existing selection process

part of the regulations. Two respondents recommended suspending the

existing

[[Page 56504]]

big game guide selection process completely in favor of the State of

Alaska's existing system. Three respondents supported making the

existing policy, with revisions, part of the regulations. One

respondent recommended that any changes in the administration of

special use permits should be made in policy form instead of revised

regulations. The proposed regulations establish a framework the Service

considers the minimum necessary to provide proper legal authority to

administer the program.

Appeal Procedure

Three respondents commented on the appeal procedure. Two commenters

urged the Service to develop a more objective appeal procedure which is

less biased than the existing system. One respondent proposed that the

issuance of certain types of permits should be subject to public notice

with an appeal process to contest the awarding of permits which are

construed to be controversial.

The regulations establish a revised appeal process including

different allowed time frames from the existing regulations. The

proposed regulations do not establish an appeal mechanism for the

general public to contest the issuance of permits. The Service believes

this would be an unjustifiable administrative burden for most routine

permits. The issuance of future permits authorizing controversial

activities, not within the scope of decisions made during prior public

planning processes in compliance with National Environmental Protection

Act (NEPA) requirements, will be subject to public comment during the

development of appropriate NEPA documentation.

Provision for Suspending Big Game Guide-Outfitter Selection

Provisions

Four comments favored establishing a provision in the regulations

that would suspend the Service's administration of selecting big game

guide-outfitters if the State of Alaska develops satisfactory

competitive selection regulations. The proposed regulations include a

provision for State selection of big game guide-outfitters as well as

sport fishing guides.

Other

The Service received numerous other comments concerning other

administrative aspects of the special use permit program. Most of these

comments were more relevant to upcoming policy development issues

rather than the rule itself. Examples include:

(1) Revising competitive selection criteria;

(2) Structure of selection panels;

(3) Comprehensive review of permit program;

(4) Cumulative impacts of authorized permittee activities; and

(5) Permit fees.

The Service also received several comments regarding permit terms,

transferability, and renewal rights. All but one of these comments

favored longer term permits with renewal rights and allowances for

transferability. The proposed rule provides for 5 year terms with

renewal rights and limited transferability.

One respondent recommended that the Service thoroughly assess the

activities occurring under past and present permits and provide this

information to the public prior to publishing this proposed rule. The

Service does not feel additional assessments are needed because these

regulations focus on the administrative process, not on management

decisions relating to the number and types of permits to be authorized.

Such assessments will be needed during the development or revision of

public use management plans and/or comprehensive conservation plans for

individual refuges.

One respondent recommended changes in the Service's emergency

closure process. These recommendations are applicable to another

section of existing regulations and do not pertain to this proposed

rule.

One respondent recommended that the proposed rule require written

compatibility determinations before any secondary use is allowed.

Compatibility determinations are statutorily required for activities

requiring a special use permit. Written determinations are routinely

completed by every Refuge Manager in Alaska. If the Service determines

there is a need for a regulation on this subject, it will be included

in the next revision of Part 25, Subpart D of Title 50 of the Code of

Federal Regulations which applies to all national wildlife refuges, not

just refuges in Alaska.

Request for Additional Comments

In accordance with Department policy, interested persons may submit

written comments concerning this proposed rule by any of the following:

(1) Mailing to Daryle R. Lons, U.S. Fish and Wildlife Service; 1011

East Tudor Road, Anchorage, AK 99503-6199;

(2) Faxing to Daryle Lons at (907) 786-3657; or

(3) Electronically mailing to [email protected].

The Service scheduled public meetings to receive comments in

Anchorage and Fairbanks, Alaska and reviewed and considered all

substantive comments before this proposed rule was published.

Paperwork Reduction Act

As required by the Paperwork Reduction Act of 1995 (44 U.S.C.

3507(d)), the Service has applied for its expired authorization and

clearance number 1018-0077 to be re-instated by the Office of

Management and Budget (OMB). The Service is applying for an emergency

extension and is likewise working on a long-term 3-year authorization

request which will be submitted before the emergency authorization

expires. No information collection will be made until this

authorization is obtained and current.

This collection of information will be achieved through the use of

a USFWS Application Form, which will be modified pursuant to 50 CFR

13.12(b), to address the specific requirements of the final rule. The

information collection requirements needed for the proper use and

management of all Alaska National Wildlife Refuges is contained in 50

CFR 36.3. The information is being collected to assist the Service in

administering economic and other privileged use programs and,

particularly, in the issuance of permits and the granting of statutory

or administrative benefits.

This collection of information will establish whether the applicant

is fully qualified to receive the benefits of a refuge permit. The

information such as name, address, phone number, depth of experience,

qualifications, time in residence, knowledge of function, and

affiliations requested in the application form is required to obtain a

benefit.

The likely respondents to this collection of information will be

individual Alaska citizens and native corporations who wish to be

considered to receive a refuge permit. This information will be needed

by the USFWS to determine whether a given individual or corporation

qualifies. A refuge permit will be approved for 3 years, at which time

renewal of approval will be considered by the Service. The public

reporting burden for this collection of information is estimated to

average 1.5 hours per response, including the time for reviewing

instructions, searching existing data sources, gathering and

maintaining data needed, and completing and reviewing the collection of

information. The estimated number of

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likely respondents is less than ten, yielding a total annual reporting

and recordkeeping burden of 15 hours or less.

Direct comments regarding the burden estimate or any other aspect

of the form to the Service Information Collection Clearance officer,

Fish and Wildlife Service, Mail Stop 224, Arlington Square, U.S.

Department of the Interior, 1849 C Street, N.W., Washington, D.C.

20240, and to the Office of Information and Regulatory Affairs, OME,

Attention: Desk officer for the Interior Department (1018-0077),

Washington, D.C. 20503.

Environmental Considerations

In accordance with 516 DM 2, Appendix 2, the Service has determined

that this action is categorically excluded from the NEPA process as it

contains ``policies, directives, regulations and guidelines of an

administrative, financial, legal, technical or procedural nature'' that

will have no potential for causing substantial environmental impact.

Economic Effects/Regulatory Flexibility Act Compliance

This rulemaking was not subject to review by the Office of

Management and Budget under Executive Order 12866. A review under the

Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) has revealed

that this proposed rulemaking would not have a significant effect on a

substantial number of small entities, which include businesses,

organizations, or governmental jurisdictions. The proposed rule will

maintain an overall economic status quo without changes in either the

number or type of permits being issued.

Unfunded Mandates

The Service has determined and certifies pursuant to the Unfunded

Mandates Act (2 U.S.C. 1502 et seq.), that this rulemaking will not

impose a cost of $100 million or more in any given year on local or

State governments or private entities.

Civil Justice Reform

The Department has determined that these proposed regulations meet

the applicable standards provided in Sections 3(a) and 3(b)(2) of

Executive Order 12988.

Primary Author: Daryle R. Lons, Refuge Program Specialist, Fish and

Wildlife Service, Alaska Region.

List of Subjects in 50 CFR Part 36

Alaska, Recreation and recreation areas, Reporting and

recordkeeping requirements, Wildlife refuges.

Accordingly, Part 36 of Chapter I of Title 50 of the Code of

Federal Regulations is proposed to be amended as follows:

PART 36--[AMENDED]

1. The authority citation for Part 36 continues to read as follows:

Authority: 16 U.S.C. 460(k) et seq., 668dd et seq., 742(a) et

seq., 3101 et seq., and 44 U.S.C. 3501 et seq.

2. Section 36.41 is revised to read as follows:

Sec. 36.41 Permits.

(a) Applicability. The regulations contained in this section apply

to the issuance and administration of competitively and

noncompetitively issued permits for economic and/or other privileged

uses on all national wildlife refuges in Alaska. Nothing in this

section requires the refuge manager to issue a special use permit if

not otherwise mandated by statute to do so. Supplemental procedures for

granting historical use, Native Corporation, and local preferences in

the selection of commercial operators to hold permits to provide

visitor services, other than hunting and fishing guiding on refuges in

Alaska, are addressed in Sec. 36.37, Revenue Producing Visitor

Services.

(b) Definitions. As used in this section, the term or terms:

Commercial visitor service shall mean any service or activity made

available for a fee, commission, brokerage or other compensation to

persons who visit a refuge, including such services as providing food,

accommodations, transportation, tours, and guides. Included is any

activity where one participant/member or group of participants pays

more in fees than the other participants (non member fees, etc.), or

fees are paid to the organization which are in excess of the bona fide

expenses of the trip;

Entire business shall mean all assets including, but not limited

to, equipment, facilities, and other holdings associated with the

permittee's type of commercial visitor service authorized by permit.

This term also includes assets held under the name of separate business

entities, which provide the same type of commercial visitor services

authorized by permit, that the permittee has a financial interest in.

The term does not include related enterprises owned by the permittee

such as taxidermy and travel services;

Operations plan shall mean a narrative description of the

commercial operations which contains all required information

identified in the prospectus;

Permit shall mean a special use permit issued by the refuge manager

which authorizes a commercial visitor service or other activity

restricted by law or regulation on a national wildlife refuge;

Prospectus shall mean the document that the Service uses in

soliciting competition to award commercial visitor services on a

refuge;

Subcontracting shall mean any activity in which the permittee

provides financial or other remuneration to anyone other than employees

to conduct the specific commercial services authorized by the Service.

The permittee's primary authorized activities must be conducted in a

genuine employer/employee relationship where the source of all

remuneration for services provided to clients is from the permittee.

Subcontracting does not apply to booking services or authorized

secondary services provided to clients in support of the permittee's

primary authorized activities (e.g., a guide paying a marine or air

taxi operator to transport clients);

Subletting shall mean any activity in which the permittee receives

financial or other remuneration in return for allowing another

commercial operator to conduct any of the permittee's authorized

activities in the permittee's use area; and

Use area shall mean the designated area that a permittee is

authorized to conduct commercial services in.

(c) General provisions. In all cases where a permit is required,

the permittee must abide by the conditions under which the permit was

issued. Refuge managers will provide written notice to the permittee in

all cases where documentation of noncompliance is prepared for use in

any administrative proceeding involving the permittee.

(d) Application. (1) This section and other regulations in this

part 36, generally applicable to the National Wildlife Refuge System

require that permits be obtained from the refuge manager. For

activities on the following refuges, permits are to be obtained from

the respective refuge manager in the following locations:

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Refuge Office location

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Alaska Peninsula National Wildlife King Salmon.

Refuge.

Alaska Maritime National Wildlife Homer.

Refuge.

Aleutian Islands Unit, Alaska Maritime Homer.

NWR.

Arctic National Wildlife Refuge........ Fairbanks.

Becharof National Wildlife Refuge...... King Salmon.

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Innoko National Wildlife Refuge........ McGrath.

Izembek National Wildlife Refuge....... Cold Bay.

Kanuti National Wildlife Refuge........ Fairbanks.

Kenai National Wildlife Refuge......... Soldotna.

Kodiak National Wildlife Refuge........ Kodiak.

Koyukuk National Wildlife Refuge....... Galena.

Nowitna National Wildlife Refuge....... Galena.

Selawik National Wildlife Refuge....... Kotzebue.

Tetlin National Wildlife Refuge........ Tok.

Togiak National Wildlife Refuge........ Dillingham.

Yukon Delta National Wildlife Refuge... Bethel.

Yukon Flats National Wildlife Refuge... Fairbanks.

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(2) For noncompetitively issued permits, the applicant may present

the application verbally if he/she is unable to prepare a written

application. The refuge manager will keep a written record of such

verbal application. For competitively issued permits, the applicant

must submit a written application in the format delineated in the

prospectus or other designated format of the Service.

(3) The refuge manager will grant or deny applications for

noncompetitively issued permits in writing within 45 days, except for

good cause. For competitively issued permits, the refuge manager will

grant or deny applications in accordance with the time frame

established in the prospectus, except for good cause.

(4) Application period deadlines for individual refuges may be

established for both competitively and noncompetitively issued permits.

Notification of availability for commercial opportunities and

application deadlines will be sent to existing and/or the previous

year's permittees, published in at least one newspaper of general

circulation in the State and in at least one local newspaper if

available, and made available for broadcast on local radio stations in

a manner reasonably calculated to inform local prospective applicants.

(5) The Service may limit the number of applications that an

individual may submit for competitively awarded offerings.

(e) Competitively awarded permits. (1) Where the number of

available permits is limited, permits will be awarded competitively. A

prospectus with invitation to bid system will be the primary

competitive method used for selecting commercial visitor services.

Where justified, other selection methods, including but not limited to

lotteries, may be used. Such circumstances may include, but not be

limited to, the timely refilling of use areas that have become vacant

during regularly scheduled terms to prevent commercial visitor service

opportunities from going unused, and initiating trial programs on

individual refuges. The refuge manager has discretionary authority to

issue noncompetitive permits on a one-time, short-term basis to

accredited educational institutions and nonprofit, environmental

organizations for activities in use areas where permits are otherwise

limited to competitive award.

(2) Where numbers of permits have been limited for an activity

prior to the promulgation of these regulations and a prospectus with

invitation to bid system has not yet been developed, refuge managers

may issue noncompetitive five-year permits on a one-time basis to

existing permittees.

(3) All solicitations for competition will be publicly noticed in

accordance with paragraph (d)(4) of this section and include reasonable

application periods of not less than 60 days. When competitively

selecting permittees for an activity in a use area where permits for

that activity have not previously been competitively awarded, the

Service will publicly notice the upcoming opportunity a minimum of 18

months prior to the effective date of the permit term.

(4) All prospectuses will identify the selection criteria that the

Service will use to evaluate the proposals. Experience and performance

in providing the same or similar services must be included as a

criterium in all prospectuses involving commercial visitor services. In

evaluating the experience of an applicant, the Service will

specifically consider knowledge of the specific area covered by the

prospectus and the nature of the technical skills required to provide

quality service to the public.

(5) A panel of Service employees who use a scoring process based on

the selection criteria will evaluate and rank applications received in

response to a prospectus.

(6) The Service has discretionary authority to not evaluate or

consider proposals that are incomplete or improperly submitted.

(7) The Service may establish minimum scores to qualify for the

award of permits. If established, these minimum scores will be

identified in the prospectus.

(8) The Service may establish limits on the number of use areas

within an individual refuge, or on refuges statewide, in which a

permittee is authorized to operate. This limit applies to different

corporations in which the same individual has any ownership interests.

(9) When vacancies occur in competitively filled use areas, the

procedure for reissuing the permits will depend on how long it has been

since the permit was originally issued. If a vacancy occurs within the

first 12 months of the permit's effective date, the permit will be

awarded to the next highest ranking interested applicant in the

original solicitation. Resolicited competition for the area will occur

as soon as practicable if:

(i) A vacancy occurs after 12 months of the permits effective date;

and

(ii) At least 24 months of the original permit term is available

for a new permittee after completion of the solicitation, application,

evaluation and awards period. If less than 24 months of the term of the

permit is available, the Service has the discretion to solicit

competition during the regularly scheduled solicitation period. In

areas where historically there has not been significant permittee

interest, a noncompetitively issued permit may be issued on an annual

basis until competition can be solicited in conjunction with other

solicitations for vacant areas.

(10) Terms of permits awarded under the prospectus with invitation

method are valid for 5 years except in those instances where permits

are issued to fill vacancies occurring during a scheduled award cycle.

In these instances, the duration of the permit may be limited to the

expiration date of the original award period. Permits awarded under the

prospectus with invitation method may be noncompetitively renewed by

the refuge manager for a period of 5 additional years upon showing

permittee compliance with all applicable permit terms and conditions

and a satisfactory record of performance. No other extensions or

noncompetitive renewals shall be awarded after one renewal.

(11) Permit privileges may be transferred to other qualified

entities that demonstrate the ability to meet Service standards, as

outlined in the prospectus upon which the existing permit was based,

subject to approval by the refuge manager. Requests for transfers must

be made in writing to the refuge manager. A permittee who transfers

his/her privileges will not be

[[Page 56507]]

eligible to be considered for competitively awarded permits for the

same type of activity on the same national wildlife refuge for a period

of 3 years following the authorized transfer. Transfers may be approved

if all the following criteria are satisfied:

(i) The transfer is part of the sale or disposition of the current

permittee's entire business as earlier defined;

(ii) The current permittee was: either conducting the commercial

activity in the area prior to establishment of the refuge; conducting

the commercial operation in the refuge under authorization of a permit

for a minimum of 15 years; or owns significant real property in the

area, the value of which is dependent on holding a refuge permit.

Consideration of the last element will include, but not be limited to:

(A) The relationship of the real property to permitted refuge

activities as documented in the operations plan;

(B) The percentage that the authorized refuge activities comprise

of the total commercial use associated with the real property; and

(C) The appraised value of the real property.

(iii) The transferee is independently qualified to hold the permit

under the standards of the prospectus of the original existing permit.

(iv) The transferee has an acceptable history of compliance with

fish and wildlife and related permit regulations during the past 5

years. An individual with any felony conviction is considered an

ineligible transferee. Transfer approval to an individual having any

fish and wildlife related misdemeanor violation will be discretionary.

Denial will be based on, but not limited to, whether the individual

committed any violation in which the case disposition resulted in any

of the following:

(A) Any jail time served;

(B) Any civil penalty or criminal fine of $250 or greater;

(C) Forfeiture of equipment or harvested animal (or parts thereof)

valued at $250 or greater;

(D) Suspension of privileges or revocation of any fish and wildlife

related license/permits;

(E) Other alternative sentencing that indicates the penalty is of

equal severity to the foregoing elements; or

(F) Any multiple misdemeanor violations.

(12) The transferee shall follow the operations plan of the

original permittee. The transferee's operations plan may be modified

with the written consent of the refuge manager as long as the change

does not result in increased adverse impacts to refuge resources or

other refuge users.

(13) Upon timely approval of the transfer, the Service will issue

the new permittee a permit for the remaining portion of the original

permit term. The refuge manager retains the right to restrict, suspend,

revoke, or not renew the permit for failure to comply with its terms

and conditions.

(14) Privileges of permits issued under this paragraph (e) may be

transferred, subject to regional director approval, to a former spouse

when a court awards permit-associated business assets in a divorce

settlement agreement to that person. The recipient must be

independently qualified to hold the permit under the minimum standards

identified by the Service when the permit was originally issued and has

an acceptable history of compliance as set forth in paragraph

(e)(11)(iv) of this section.

(15) Privileges of permits issued under this paragraph (e) may be

transferred in the case of death or disability of the permittee,

subject to regional director approval, as provided in this paragraph

(e). In these cases, the permit privileges may pass to a person who was

a business partner when the permit was issued, a spouse, or an

immediate family member who is independently qualified to hold the

permit under the minimum standards identified by the Service when the

permit was originally issued, and has an acceptable history of

compliance as set forth in paragraph (e)(11)(iv) of this section.

(16) Upon [the effective date of the final regulations], refuge

managers shall amend existing competitively-awarded permits through the

prospectus method to make the terms fully consistent with this section,

including eligibility for a 5-year noncompetitive renewal. Managers

must be careful not to break existing legal contracts.

(f) Fees. Permittees must pay fees formally established by regional

and/or nation-wide Service policy. Any fee exemption must be documented

by the refuge manager.

(g) Subletting and subcontracting. A permittee may not sublet any

part of an authorized use area. Written approval from the refuge

manager to subcontract any service authorized by the permit is required

unless the subcontracted service is specifically identified in the

permittee's approved operations plan.

(h) Restriction, suspension and revocation of permits. A permit may

at any time be suspended, revoked, or its terms may be reasonably

restricted for noncompliance with the terms and conditions thereof, or

the regulations in, this subchapter C: for nonuse; for violation of any

law, regulation or order applicable to the refuge; to protect public

health or safety; or if the refuge manager determines the use to be

incompatible with refuge purposes or is inconsistent with the Service's

obligations under Title VIII of the Alaska National Interest Lands

Conservation Act.

(i) Appeals. (1) Any person adversely affected by a refuge

manager's decision or order relating to the person's permit, or

application for a permit, has the right to have the decision or order

reviewed by the regional director. This section does not apply to

permits or applications for rights-of-way. See 50 CFR 29.22 for the

hearing and appeals procedure on rights-of-way.

(2) Prior to making any adverse decision or order on a permit or

application, the refuge manager will notify the permittee or applicant,

verbally or in writing, of the proposed action and its effective date.

The permittee or applicant of noncompetitively issued permits shall

have 45 calendar days after notification in which to present to the

refuge manager, orally or in writing, a statement in opposition to the

proposed action or effective date. A holder of a valid permit shall be

notified in writing, within 10 calendar days after receipt of the

statement in opposition of the refuge manager's final decision or

order. An applicant for a permit shall be notified in writing within 30

calendar days after receipt of the statement in opposition, of the

refuge manager's final decision or order. Applicants, who wish to

appeal permit awards made by competitive selection must appeal the

refuge manager's decision directly to the regional director within the

time period provided for in paragraph (i)(3) of this section.

(3) The permittee or applicant shall have 45 calendar days from the

postmarked date of the refuge manager's final decision or order in

which to file a written appeal to the regional director. In appeals

involving applicants who were not selected during a competitive

selection process, the selected applicant concurrently will be afforded

the opportunity to provide information to the regional director before

a final decision is made. For purposes of reconsideration, appellants

shall present the following information:

(i) Any statement or documentation, in addition to that included in

the initial application, permit or competitive prospectus, which

demonstrates that the appellant satisfies the criteria set forth in the

document

[[Page 56508]]

under which the permit application/award was made;

(ii) The basis for the permit applicant's disagreement with the

decision or order being appealed; and

(iii) Whether or not the permit applicant requests an informal

hearing before the regional director.

(4) The regional director will provide a hearing if requested by

the applicant. After consideration of the written materials and oral

hearing, and within a reasonable time, the regional director shall

affirm, reverse, or modify the refuge manager's decision or order and

shall set forth in writing the basis for the decision. A copy of the

decision must promptly be forwarded to the applicant and will

constitute final agency action.

(5) Compliance with any decision or order of a Refuge Manager must

not be suspended if an appeal has been taken unless such suspension is

authorized in writing by the Regional Director, and then only upon a

determination that such suspension is not detrimental to the interests

of the United States or upon submission and acceptance of a bond deemed

adequate to indemnify the United States from loss or damage.

(j) State selection of guide-outfitters. Nothing in this section

will prohibit the Service from cooperating with the State of Alaska in

administering the selection of sport fishing guides and big game

hunting guide-outfitters operating on national wildlife refuges should

the State develop a competitive selection process which is acceptable

to the Service.

Dated: September 24, 1996.

George T. Frampton, Jr.,

Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 96-28105 Filed 10-31-96; 8:45 am]

BILLING CODE 4310-55-P