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: Final rule.

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SUMMARY: This rule clarifies, updates, and adds to existing regulations

for the administration of all special use permits (permits) on national

wildlife refuges (refuges) in Alaska. These regulations provide the

U.S. Fish and Wildlife Service (Service) with the necessary regulatory

authority to administer the recent changes in the refuges' commercial

visitor service programs and

[[Page 45337]]

to ensure proper and uniform management of all permits on refuges in

Alaska.

EFFECTIVE DATE: This rule is effective September 26, 1997.

ADDRESSES: U.S. Fish and Wildlife Service, Attention: Daryle R. Lons,

1011 E. Tudor Rd., Anchorage, AK 99503.

FOR FURTHER INFORMATION CONTACT: Daryle R. Lons at the above address,

telephone (907) 786-3354.

SUPPLEMENTARY INFORMATION:

Background

In the November 1, 1996, issue of the Federal Register (61 FR

56502-56508) the Service published the proposed rulemaking and invited

public comment.

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 original regulations governing issuance of permits on units

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

36.41, were published in the Federal Register in 1981 (46 FR 31827,

June 17, 1981, as corrected at 46 FR 40194, August 7, 1981) and were

amended in 1986 (51 FR 44793, December 12, 1986). Since then, the

permit administration program on refuges in Alaska continued to evolve

and grow in both size and complexity. Although the Service issues

special use permits 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 and

transporters.

The primary purpose of these 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 62 FR

1838, January 14, 1997) were promulgated separately from this

rulemaking. The 1307 regulations established 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 supplement these regulations.

Since the Service promulgated the original regulations, 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, the Service implemented an interim program in

June 1992. Following this process, requests for proposals were

solicited and the Service notified applicants of selections in January

1993. The Service awarded successful applicants 5-year permits

effective July 1, 1993. These 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 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 implementation

of a competitive selection process.

The existing system also needed modification 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. Also, the Service revised the

policy 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 negative

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 that 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 the

reissuance of existing competitively awarded permits consistent with

the policy. Congress supported a return to the earlier policy by

including language in a conference report (H.R. Conference Report No.

402, 104th Congress, 1st Session 1995) 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 regulations. To meet the intent of the directive,

these 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

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amount of time and money and built their lives around a business which

is dependent upon receiving a permit.

These 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 original regulations did 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 Service's

commitment to developing regulations addressing administration of the

program influenced the U.S. District Court in 1994 to find in favor of

the Service.

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 public.

Analysis of Public Comments and Changes Made to the Proposed Rule

The Fish and Wildlife Service conducted public meetings in

Anchorage and Fairbanks, Alaska to provide information about the

proposed rule and to receive public testimony. Members of the public

made only 3 official oral comments at these meetings. However, the

Service received 41 letters providing written comments on the proposed

rule. Of these, 33 were from individuals/commercial visitor service

businesses, 4 from special interest groups, 2 from the State of Alaska,

and 2 from members of the Alaska Congressional delegation.

The following is a section-by-section analysis of all substantive

changes that the Service made in the final rule in response to public

comment.

Section 36.41(b) Definitions

In response to seven comments, the definition of ``entire

business'' was modified slightly to better define what assets to

include in the term. A definition for the term ``immediate family''

also was added.

Section 36.41(e)(1) Refers to: Competitively Awarded Permits--

(Exception for Environmental Education Related Activities)

This paragraph provides the Refuge Manager with discretionary

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

basis for environmental education-related activities that also are

recreational in nature in use areas where permits of that type of

guided recreational activity are otherwise limited to competitive

award. In response to two public comments, the amended language

clarifies the intent of the proposed language and provides the

flexibility needed for organizations such as scouting groups to be

eligible to receive such a permit.

Section 36.41(e)(2) Refers to: Exception for Historically Limited

Numbers of Current Permittees

In response to one comment, the language, ``consistent with the

terms set forth in paragraph (e)(16)'' was added to this provision to

clarify the intent of the proposed language. The added language makes

it clear that the terms of the affected permittees' permits are

consistent with competitively issued permits awarded by the prospectus

with invitation to bid method.

Section 36.41(e)(10) Refers to: Terms of Permits

In response to 22 comments, the Service changed the term ``may'' to

``must'' with respect to permits being noncompetitively renewed for an

additional 5 years upon a showing that the permittee complied with all

applicable permit terms and conditions and had a satisfactory record of

performance. The commenters expressed concerns that the proposed

language would allow Refuge Managers to arbitrarily decide not to renew

the permits even if the permittee met the specified conditions. The

intent of the Service, pursuant to the 1992 policy, is to automatically

renew such permits provided all of the specified conditions are met.

The inclusion of ``must'' in the final rule clarifies the intent of the

Service's implementation of this provision. To clarify the

administrative requirements for renewing permits, the revised language

also includes the requirement that permittees complete an application

to receive the 5 year renewal.

Section 36.41(e)(11) Refers to: Transfer of Permits

The Service made several changes in response to seven comments

concerning various elements of the transfer provisions. The comments

primarily expressed two themes: the 15-year requirement for permittees

to hold a permit before being eligible to transfer the privilege is too

long, and opposition to the requirement that a permittee must sell

their entire business in order to be eligible to transfer their permit

privileges. There were also two comments that recommended the Service

to add language that would provide the Service with more latitude in

allowing transfers based upon the specific facts of each potential case

that could arise.

The Service added language, in response to the comments, that

provides it with the latitude to approve transfers that will benefit

the government in addition to the previously allowed transfers

delineated in the proposed regulations. The Service also added language

that clarifies that it has complete discretion in determining if

transfers will be allowed.

The proposed rule would have required a permittee to hold a permit

for 15 years before being eligible to transfer the permit's privilege.

This requirement is reduced to 12 years in the final rule. Although the

final rule generally requires that a permittee's entire business be

sold as a requirement for transfer eligibility, the Service revised the

definition of ``entire business,'' as noted previously, to more clearly

define included assets. After reevaluating the language of this

section, the Service also amended the language to better define what

types of violations, convictions and/or penalties would be applicable

for evaluating the history of compliance for potential transferees. The

Service also may now base denial of transfers upon a sentence of

probation.

Section 36.41(e)(14) Refers to: Transfer of Permits to Former Spouses

After reevaluating the language of this and the following section,

36.41(e)(15), the Service revised the language in these sections to

make the refuge manager the approving authority for transfers instead

of the regional director. This revision makes the approving authority

consistent with that of Section 35.41(e)(11).

Section 36.41(e)(15) Refers to: Right of Survivorship

In response to one comment, the Service revised language in the

final rule to broaden the eligibility of spouses to retain the permit

privilege in the event of death or disability of the permittee. The

Service recognizes although it is the responsibility of the permittee

to conduct or oversee the actual guiding or other commercial activity

on the refuge, it is common

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practice for the spouse of the permittee to actually have much of the

responsibility for many of the administrative parts of the business.

The revised language requires an actively involved spouse in the

business who may not have all the required certifications (e.g., big

game guiding license) to demonstrate only that they are capable of

continuing to provide the authorized services instead of having

independently been qualified in order to be eligible to retain the

permit privilege. This distinction allows eligible spouses to continue

to manage the business and hire an employee, who independently is

qualified with all the proper licenses, to conduct the authorized

activities for the remaining term of the permit. The revised language

retains the requirement that business partners and other immediate

family members have to qualify independently to hold the permit in

order for the privilege to pass to them.

Section 36.41(h) Refers to: Restriction, suspension and revocation of

permits

The Service received four comments concerning this paragraph. The

comments generally questioned the validity of the reasons for permit

suspension, restriction or revocation, and expressed concerns that the

proposed language would allow Refuge Managers to make arbitrary

decisions without ``due process.'' As stated in Section 36.41(i), any

person who is adversely affected by a Refuge Manager's decision

relating to that person's permit has appeal rights to the Regional

Director. In response to the commenters' ``due process'' concerns, the

Service added language that references the permittee's right to appeal

in section 36.41(i).

After reevaluating the language of this section in response to

public comments, the Service also amended the language to better define

what types of violations/convictions would be applicable.

The following is a section-by-section summary of other substantive

comments that the Service received but that did not result in changes

being made in the final rule.

Section 36.41(e)(1) Refers to: Lotteries

The Service received eight comments that opposed the use of

lotteries as a selection method. All of the commenters felt this

selection mechanism is unfair. As stated in the proposed regulations,

the prospectus with invitation to bid system will be the primary method

used to select commercial visitor services. The Service will use

lotteries or other selection methods only where justified and under

very limited circumstances such as providing guiding opportunities in

areas that would otherwise go unused. The Service believes having the

discretion to use alternative selection methods in isolated cases is in

the best interest of the public and therefore retained the proposed

language in the final rule.

Section 36.41(e)(2) Refers to: Exception for historically limited

numbers of current permittees

Two commenters supported and two commenters opposed the inclusion

of this paragraph that allows Refuge Managers to issue permits

noncompetitively on a one-time basis where the numbers of permits have

been limited for an activity prior to the promulgation of these

regulations and a prospectus system is not yet developed.

The Service retained this paragraph to comply with the intent of

Congressional directive in H.R. Conference Report No. 402, 104th

Congress, 1st Session (1995), and to support the interests of existing

permittees who in the past typically made significant investments based

on their prior understanding that they would continue to receive

annually issued permits as long as they met the terms of their permits

and provided a good service. This provision will provide these

permittees with adequate time to prepare for having to compete as well

as giving many of them the opportunity to recoup some of their

investments by selling their businesses and transferring their permit

privileges.

Section 36.41(e)(4) Refers to: Selection Criteria

The Service received four comments concerning selection criteria.

Two of the comments supported adding the language ``experience and

performance in providing the same or similar services shall account for

no less than 20 percent of the maximum points available under any

prospectus.'' One commenter opposed considering the knowledge of the

specific area when evaluating proposals and one commenter recommended

clarifying what the term ``specific area'' meant.

Although experience accounts for more than 20 percent in current

policy for selecting sport fish and big game hunting guides, the

Service does not believe it is appropriate or necessary to include a

specific figure since the regulations cover all types of competitive

activities and a fixed percentage may not be appropriate in all cases.

The Service believes that it is appropriate to consider knowledge of

the specific area when evaluating proposals. The Service also feels

that the proposed language, ``knowledge of the specific area covered by

the prospectus'', is sufficiently clear and did not need revising.

Section 36.41(e)(7) Refers to: Minimum Scores

One commenter opposed the Service having the discretion to

establish minimum scores for certain competitively-awarded permits. The

Service retained this provision because it believes it is in the best

interest of refuge resources and guided refuge visitors to be able to

establish defined levels of competency above minimum qualification

levels for certain types of guided activities in some locations.

Section 36.41(e)(11)(ii) Refers to: Renewal of Existing Permits

Although most commenters supported the renewal of existing permits

without competition, three commenters opposed this. The Service

retained this provision in response to the Congressional directive

received in H.R. Conference Report No. 402, 104th Congress, 1st Session

(1995) and the overall support demonstrated by the public comments that

the Service received.

Section 36.41(i) Refers to Appeals

One commenter recommended that appeals concerning competitive

selection should be handled by the evaluation panel and not the

Regional Director. Another commenter recommended keeping the 180-day

appeal period instead of the proposed 45-day appeal period.

The Service believes it is in the best interest of appellants to

retain the provision that the Regional Director has the responsibility

to hear and decide on all appeals. The proposed change in length of the

appeal period from 180 to 45 days was one of the specific items that

the Service requested comments on in the advance notice to the proposed

regulations. The majority of comments supported the change because the

180-day appeal period places selected applicants of competitive awards

in a position of not being able to make necessary preparations and

commitments for an unnecessarily long period of time. The Service

believes it is in the best interest of most permit applicants and

guided refuge visitors to reduce the appeal period from 180 to 45 days.

Other Comments

The Service received a number of other comments. Some were very

general, such as two commenters opposing the entire rule from being

promulgated and another commenter recommending that the Service should

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consider cumulative impacts of all special use permits on Alaska

refuges. Many of the other comments were more relevant to upcoming

policy issues rather than the rule itself. Examples include: several

comments recommending revision of existing selection criteria, several

comments recommending that the Service provide additional regulatory or

policy provisions which would essentially create a ``Bill of Rights''

for permittees, and several comments recommending that performance

incentives be established for existing permittees. The Service will

give due consideration to these comments during future policy

revisions.

Paperwork Reduction Act

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

3507(d)), the information collections contained in this rule have been

approved by the Office of Management and Budget (OMB) under clearance

number 1018-0014, with an expiration date of August 31, 2000.

This collection of information will be achieved through the use of

USFWS application form 3-2001, in conjunction with the provisions of

this rule. The information collection requirements needed for the

proper use and management of 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 eligible and/or is the most qualified applicant 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 most common respondents to this collection of information will

be commercial visitor service operators 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. The

public reporting burden for this collection of information is estimated

to average 1.5 hours each for 150 non-competitively awarded permits and

31.66 hours each for 60 competively awarded permits 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 annual number of respondents

is 210, yielding a total annual reporting and record keeping burden of

2125 hours.

Comments and suggestions on the burden estimate or any other aspect

of the form should be sent directly to the Office of Information and

Regulatory Affairs; Office of Management and Budget; Attention:

Interior Desk Officer; Washington, DC 20503; and a copy of the comments

should be sent to the Information Collection Clearance Officer, U.S.

Fish and Wildlife Service, MS 224-ARLSQ; 1849 C Street, NW.,

Washington, DC 20240.

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 rulemaking would not have a significant effect on a

substantial number of small entities, which include businesses,

organizations, or governmental jurisdictions. The Service issues

approximately 200 permits. The 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, the Service amends Part 36 of Chapter I of Title 50 of

the Code of Federal Regulations as follows:

PART 36--[AMENDED]

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

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

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

2. Revise Sec. 36.3 Information Collection to read as follows:

Sec. 36.3 Information collection.

The information collection requirements contained in this part have

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

seq. and assigned clearance number 1018-0014. The collected information

will assist the Service in administering these programs and,

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

or administrative benefits. The information requested in the

application form is required to obtain a benefit. The public reporting

burden for this collection of information is estimated to average 1.5

hours each for 150 non-competitively awarded permits and 31.66 hours

each for 60 competitively awarded permits 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 annual number of respondents is 210,

yielding a total annual reporting and record keeping burden of 2125

hours. Comments and suggestions on the burden estimate or any other

aspect of the form should be sent directly to the Office of Information

and Regulatory Affairs; Office of Management and Budget; Attention:

Interior Desk Officer; Washington, DC 20503; and a copy of the comments

should be sent to the Information Collection Clearance Officer, U.S.

Fish and Wildlife Service, MS 224-ARLSQ; 1849 C Street, NW.,

Washington, DC 20240.

3. 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

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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 means any service or activity made

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

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

accommodations, transportation, tours, and guides. 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 means all assets including, but not limited to,

equipment, facilities, and other holdings directly 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 specific 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;

Immediate family means the spouse and children, either by birth or

adoption, of the permittee.

Operations plan means a narrative description of the commercial

operations which contains all required information identified in the

prospectus;

Permit means 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 means the document that the Service uses in soliciting

competition to award commercial visitor services on a refuge;

Subcontracting means 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 means 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 means the designated area where commercial services may be

conducted by the permittee.

(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, request permits from the

respective refuge manager in the following locations:

------------------------------------------------------------------------

Refuge Office location

------------------------------------------------------------------------

Alaska Peninsula National Wildlife King Salmon.

Refuge.

Alaska Maritime National Wildlife Refuge Homer.

Aleutian Islands Unit, Alaska Maritime Homer.

NWR.

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

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

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) Refuge managers may establish application period deadlines for

individual refuges for both competitively and noncompetitively issued

permits. The refuge manager will send notification of availability for

commercial opportunities and application deadlines to existing and/or

the previous year's permittees. He/she will publish the notice in at

least one newspaper of general circulation in the State and in at least

one local newspaper if available, and will make 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, refuge managers will award permits

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 other nonprofit organizations

to conduct primarily environmental

[[Page 45342]]

education-related activities that also may be recreational in nature in

use areas where permits for that type of guided recreational activity

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 consistent with the terms

set forth in paragraph (e)(16) of this section on a one-time basis to

existing permittees.

(3) The Service will publish notice of all solicitations for

competition 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 were not previously competitively awarded,

the Service will publish notice of 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. All prospectuses involving

commercial visitor services must include experience and performance in

providing the same or similar services as a criterion. 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 originally was issued. The Service will award the

permit to the next highest ranking interested applicant in the original

solicitation, if a vacancy occurs within the first 12 months of the

permit's effective date. Resolicited competition for the area will

occur as soon as practicable if:

(i) A vacancy occurs after 12 months of the permit's 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. The

Service may annually issue noncompetitive permits for vacant areas,

where there has not been significant permittee interest, 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 the

Service issues permits to fill vacancies occurring during a scheduled

award cycle. In these instances, the permit duration is limited to the

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

prospectus by invitation method must be renewed noncompetitively by the

refuge manager for a period of 5 additional years upon application and

a showing of permittee compliance with all applicable permit terms and

conditions and a satisfactory record of performance. After one renewal,

the Service shall not extend or noncompetitively renew another permit.

(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 eligible to be considered for

competitively awarded permits for the same type of activity on the same

national wildlife refuge for a period of three years following the

authorized transfer. The Service retains complete discretion in

allowing transfers. In general, the Service approves transfers only

upon demonstrating that it is to the government's benefit and 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

operation in the refuge under authorization of a permit for a minimum

of 12 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 is not 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 must be 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

State and Federal fish and wildlife and related permit regulations

during the past 5 years. An individual with any felony conviction is an

ineligible transferee. Transfer approval to an individual having any

violations, convictions, or pleas of nolo contendere for fish and

wildlife related federal misdemeanors or State violations will be

discretionary. Denial is 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 or probation;

(B) Any 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 convictions or pleas of nolo contendere for fish

and wildlife-related Federal misdemeanors or State fish and wildlife-

related violations or misdemeanors irrespective of the amount of the

fine.

(12) The transferee must follow the operations plan of the original

permittee. The transferee may modify the operations plan 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

[[Page 45343]]

the permit for failure to comply with its terms and conditions.

(14) Permit privileges issued under this paragraph (e) may be

transferred, subject to refuge manager approval, to a former spouse

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

settlement agreement to that person. The recipient must independently

qualify to hold the originally issued permit under the minimum

standards identified by the Service, and the permittee must have an

acceptable history of compliance as set forth in paragraph (e)(11)(iv)

of this section.

(15) Permit privileges issued under this paragraph (e) may be

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

subject to refuge manager approval, as provided in this paragraph (e).

In these cases, the permit privileges may pass to a spouse who can

demonstrate he/she is capable of providing the authorized services and

who has an acceptable history of compliance as set forth in paragraph

(e)(11)(iv) of this section. A spouse who lacks any required license(s)

but otherwise qualifies may hire an employee, who holds the required

license(s) and who has an acceptable history of compliance as set forth

in paragraph (e)(11)(iv) of this section, to assist in the operation.

Permit privileges may also pass to another member of the immediate

family or a person who was a business partner at the time of original

permit issuance. This person must be independently qualified under the

minimum standards identified by the Service at the time of original

permit issuance and have an acceptable history of compliance as set

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

(16) Upon September 26, 1997, refuge managers will amend existing

competitively-awarded permits through the prospectus method to make the

terms fully consistent with this section, including eligibility for a

5-year non-competitive renewal.

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

and/or nation-wide Service policy. The refuge manager must document any

fee exemption.

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

part of an authorized use area. Subcontracting any service authorized

by the permit requires written approval from the refuge manager unless

the subcontracted service is specifically identified in the permittee's

approved operations plan.

(h) Restriction, suspension and revocation of permits. The refuge

manager may suspend, revoke, or reasonably restrict the terms of a

permit for noncompliance with the terms and conditions of the

regulations in this subchapter C; for nonuse of the permit; for

violations/convictions (including pleas of nolo contendere) of any law

or regulation pertaining to the same type of activity authorized by the

permit, whether or not the activity occurred on or off 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. All actions pertaining to this

paragraph are subject to the appeal process as set forth in paragraph

(i) of this section.

(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 any permit or

an application for a noncompetitively issued permit, the refuge manager

will notify the permittee or applicant, verbally or in writing, of the

proposed action and its effective date. A 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. Notification in writing to a valid permit holder shall occur

within 10 calendar days after receipt of the statement in opposition to

the refuge manager's final decision or order. An applicant for a

noncompetitively issued 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. An applicant for a

competitively issued permit who is not selected will not receive

advance notice of the award decision. Such applicants, who wish to

appeal the decision must appeal 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 have the

opportunity to provide information to the regional director prior to

the final decision. Selected applicants who choose to take advantage of

this opportunity, will retain their right of appeal should the appeal

of the unsuccessful applicant result in reversal or revision of the

original decision. 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 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. The applicant

must be sent a copy of the decision promptly. The decision will

constitute final agency action.

(5) Permittee compliance with any decision or order of a refuge

manager shall be required during the appeal process unless the regional

director makes a preliminary finding contrary to the refuge manager's

decision, and prepares a written determination that such action is not

detrimental to the interests of the United States, or upon submission

and acceptance of a bond deemed adequate by the refuge manager 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: August 22, 1997.

Donald J. Barry,

Acting Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 97-22827 Filed 8-26-97; 8:45 am]

BILLING CODE 4310-55-P