Land Uses

DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 251

RIN 0596-AB57

Land Uses

AGENCY: Forest Service, USDA.

ACTION: Proposed rule.

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SUMMARY: The Forest Service proposes regulations to establish the

procedures by which certain persons may conduct revenue-producing

visitor services in Conservation System Units within the National

Forests in Alaska. These regulations are required by section 1307 of

the Alaska National Interest Lands Conservation Act. The intended

effect is to establish workable procedures for recognizing and

administering the statutory rights and preferences for conducting

visitor services.

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

ADDRESSES: Send written comments to Regional Forester, Alaska Region,

Forest Service, USDA, PO Box 21628, Juneau, AK 99802-1628.

The public may inspect comments received on this proposed rule at

the Alaska Regional Office, Room 519A, Federal Building, 709 W. 9th

Street, Juneau, AK 99802, Monday through Friday between the hours of 8

a.m. to noon and 12:30 p.m. to 4 p.m.

FOR FURTHER INFORMATION CONTACT:

Arn Albrecht, Public Services Staff, Alaska Region, (907) 586-7886.

SUPPLEMENTARY INFORMATION:

Background

The Forest Service manages National Forest System lands in Alaska

consisting of the Tongass and the Chugach National Forests in southeast

and southcentral areas of the State. A number of laws govern the

issuance and administration of special use authorizations that

authorize a variety of visitor services operated by private

concessionaires, ranging from outfitting and guiding to resorts. These

laws include the Organic Organization Act of June 4, 1897; the Term

Permit Act of March 4, 1915; the Granger-Thye Act of April 24, 1950;

the Land and Water Conservation Fund Act of September 3, 1964; the

Wilderness Act of September 3, 1964, the Alaska National Interest Lands

Conservation Act of 1980; and the National Ski Area Permit Act of 1986

ng from outfitting and guiding to resorts. These

laws include the Organic Organization Act of June 4, 1897; the Term

Permit Act of March 4, 1915; the Granger-Thye Act of April 24, 1950;

the Land and Water Conservation Fund Act of September 3, 1964; the

Wilderness Act of September 3, 1964, the Alaska National Interest Lands

Conservation Act of 1980; and the National Ski Area Permit Act of 1986.

Regulations at 36 CFR part 251, subpart B address the special-use

application process; the nature of interest of an authorization; terms

and conditions of use; rental fees; issuance; termination; revocation;

suspension; and renewal. These regulations must be augmented to

implement the special statutory requirements specific to Conservation

System Units within the National Forests in Alaska.

Statutory Requirements

The Alaska National Interest Lands Conservation Act (ANILCA) (16

U.S.C. 3101 et seq.) provided for the disposition and use of a variety

of federally owned lands in Alaska. Section 1307 (16 U.S.C. 3197)

contains two provisions concerning persons and entities who are to be

given special rights and preferences with respect to revenue producing

``visitor services'' on certain lands within the National Forest System

designated by ANILCA as Conservation System Units under the

administration of the Secretary of Agriculture.

A Conservation System Unit, as it relates to the National Forests,

means any unit in Alaska of the National Wild and Scenic River System,

National Trail System, National Wilderness Preservation System or a

National Forest Monument including existing Units or any such Unit

established, designated, or expanded hereafter. (ANILCA section 102(4))

(43 U.S.C. 1618)

Subsection (a) of section 1307 (16 U.S.C. 3197) provides that,

notwithstanding any other provision of law, the Secretary of

Agriculture, under

d and Scenic River System,

National Trail System, National Wilderness Preservation System or a

National Forest Monument including existing Units or any such Unit

established, designated, or expanded hereafter. (ANILCA section 102(4))

(43 U.S.C. 1618)

Subsection (a) of section 1307 (16 U.S.C. 3197) provides that,

notwithstanding any other provision of law, the Secretary of

Agriculture, under

such terms and conditions as he determines are reasonable, shall permit

any persons who, on or before January 1, 1979, were engaged in

adequately providing any type of visitor service within any area

established as or added to a Conservation System Unit to continue

providing such type of service and similar types of visitor services

within such area, if such service or services are consistent with the

purposes for which such unit is established or expanded.

Subsection (b) of section 1307 (16 U.S.C. 3197) provides that in

selecting persons to provide any type of visitor service for any

Conservation System Unit, except sport fishing and hunting guiding

activities, and except as provided in subsection (a), the Secretary of

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

the Secretary determines is most directly affected by the establishment

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

(2) give preference to persons whom he determines, by rule, are local

residents. (16 U.S.C. 3197)

Subsection (c) of section 1307 (43 U.S.C. 1611) defines ``Visitor

Service'' to mean any service made available for a fee or charge to

persons who visit a Conservation System Unit, including such services

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

excepting the guiding of sport hunting and fishing.

Interagency Coordination

rule, are local

residents. (16 U.S.C. 3197)

Subsection (c) of section 1307 (43 U.S.C. 1611) defines ``Visitor

Service'' to mean any service made available for a fee or charge to

persons who visit a Conservation System Unit, including such services

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

excepting the guiding of sport hunting and fishing.

Interagency Coordination

On April 25, 1995, the National Park Service and the United States

Fish and Wildlife Service each issued proposed rules to implement

section 1307 of ANILCA for national park lands and refuges in Alaska.

The Forest Service has coordinated with these agencies in the

development of these proposed regulations in order to provide

consistency in the implementation of this section of ANILCA in so far

as is practical within the framework of each agency's legal mandates.

Section-by-Section Explanation

The Forest Service proposes to augment the special uses rules at

subpart B by establishing a new subpart E to govern ``Revenue Producing

Visitor Services in Alaska''. An explanation of each section of this

proposed subpart follows.

Proposed Section 251.120 Scope and Applicability

This section explains that these regulations implement section 1307

of ANILCA with regard to the continuation of visitor services existing

as of January 1, 1979, and to granting preference to local residents

and certain Native Corporations to obtain special use authorizations

for visitor services on designated lands within the Tongass and Chugach

National Forests in Alaska. The regulations will apply only to Forest

Service administered Conservation System Units (CSU's), not all

National Forest Lands. Existing CSU's within the Tongass and Chugach

National Forests include the following:

National Monuments Established Within the Tongass National Forest

Misty Fiords National Monument

Admiralty Island National Monument

Wilderness Areas Established Within the Tongass National Forest

will apply only to Forest

Service administered Conservation System Units (CSU's), not all

National Forest Lands. Existing CSU's within the Tongass and Chugach

National Forests include the following:

National Monuments Established Within the Tongass National Forest

Misty Fiords National Monument

Admiralty Island National Monument

Wilderness Areas Established Within the Tongass National Forest

Chuck River Wilderness

Coronation Island Wilderness

Endicott River Wilderness

Karta Wilderness

Kootznoowoo Wilderness

Kuiu Wilderness

Maurelle Islands Wilderness

Misty Fiords National Monument Wilderness

Petersburg Creek-Duncan Salt Chuck Wilderness

Pleasant/Lemesurier/Indian Islands Wilderness

Russell Fiord Wilderness

South Baranof Wilderness

South Etolin Wilderness

South Prince of Wales Wilderness

Stikine-LeConte Wilderness

Tebenkof Bay Wilderness

Tracy Arm-Fords Terror Wilderness

Warren Island Wilderness

West Chichagof-Yakobi Wilderness

Units of the National Trails System

Iditarod National Historic Trail (Seward to Girdwood Section on the

Chugach National Forest)

National Recreation Trails (six on Tongass NF and four on the Chugach

NF)

Units of the Wild and Scenic River System

There are no Wild, Scenic, or Recreation Rivers currently designated

within the National Forests in Alaska.

This section also explains that existing regulations in 36 CFR part

251, subpart B, concerning special use authorizations apply unless

expressly waived by the rules in subpart E. In conformance with ANILCA,

this section states that this subpart does not apply to the guiding of

sport hunting and fishing.

Proposed Section 251.121 Definitions

This section provides a number of definitions for special terms

used in the regulations. Pertinent definitions are discussed under

various sections of the proposed rule.

Proposed Section 251.122 Historical Operator Special Use

Authorizations

e with ANILCA,

this section states that this subpart does not apply to the guiding of

sport hunting and fishing.

Proposed Section 251.121 Definitions

This section provides a number of definitions for special terms

used in the regulations. Pertinent definitions are discussed under

various sections of the proposed rule.

Proposed Section 251.122 Historical Operator Special Use

Authorizations

These provisions implement subsection (a) of section 1307 and

permit persons who were adequately providing visitor services in

applicable National Forest areas in Alaska prior to January 1, 1979, to

continue to do so under reasonable terms and conditions.

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

adequately providing any type of visitor service within a Conservation

System Unit in Alaska, who have continued to provide that visitor

service, and who have retained controlling interest in the business

would be considered ``historical operators'' under these regulations.

Proposed Sec. 251.122 establishes the process by which persons who

qualify as historical operators could exercise the rights and

preferences granted under section 1307(a) of ANILCA.

This section makes it clear that the existence of a right to

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

unlimited right. Rather, such a right is subordinate to the management

of the CSU and does not grant a monopoly to provide all visitor

services in a given area to the exclusion of other individuals or

entities. A historical operator; however, may provide services similar

to those provided prior to January 1, 1979, if acceptable to the Forest

Service as consistent with the purposes of the CSU and provided that

the similar services are not in excess of those provided by the permit

holder as of January 1, 1979.

This section also specifies under what circumstances historical

operator rights are lost

For example, an individual

(qualified as a historical operator) holding a special use

authorization may

transfer a controlling interest in the business to a spouse, child, or

informal partner if the transferee was personally engaged in the

conduct of the historical business prior to January 1, 1979.

Proposed Section 251.123 Preferred Operator Competitive Special Use

Authorization Procedures

This section implements subsection (b) of section 1307 and would

grant a preference to certain individuals and Native Corporations in

the award of special use authorizations to provide visitor services in

CSUs.

The provisions of this section apply to two categories of persons

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

collectively referred to as ``preferred oeprators''. Both categories

have equal preference in the award of a special use authorization.

The first category of preferred operators is the Native Corporation

determined by the authorized officer to be most directly affected by

the establishment or expansion of the CSU.

The second category of preferred operators consists of persons who

are determined by the authorized officer to be current local residents.

A ``local resident'' is defined in these proposed regulations to mean:

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

local area for 12 consecutive months before issuance of a solicitation

of applications for a special use authorization for visitor services in

a CSU and who maintain their primary, permanent residence and business

within the local area and who, whenever absent from this primary,

permanent residence, have the intention of returning to it. Factors

demonstrating the locations of an individual's primary, permanent

residence and business may include, but are not limited to, the

permanent address indicated on licenses issued by the State of Alaska,

tax returns, and voter registration.

residence and business

within the local area and who, whenever absent from this primary,

permanent residence, have the intention of returning to it. Factors

demonstrating the locations of an individual's primary, permanent

residence and business may include, but are not limited to, the

permanent address indicated on licenses issued by the State of Alaska,

tax returns, and voter registration.

(2) For corporations. A corporation in which the controlling

interest is held by an individual or individuals who qualify as ``local

resident(s)'' within the meaning of this section. For non-profit

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

officers must qualify as ``local residents''.

A ``local area'' is defined as that area within 100 miles of the

location within a Conservation System Unit where any visitor services

covered by a single solicitation by the Forest Service are to be

authorized. The area covered by a particular solicitation where visitor

services would be authorized could vary from a specific location within

a CSU to the entire area within the CSU boundary depending upon the

particular visitor services being solicited.

Proposed Sec. 251.124 establishes a procedure for the solicitation

and award of special use authorizations, which incorporates the rights

of preferred operators under section 1307(b). This section of the law

takes effect only when there is a competitive award of a special use

authorization. Under proposed Sec. 251.124 the authorized officer must

publicly solicit offers to provide visitor services by issuing a

prospectus, when the Forest Service determines the following:

(1) There is a need for visitor services within the area of the

CSU;

(2) There is a need to limit authorized visitor use in the area

and/or the number of authorized operators;

(3) There is an opportunity for competitive bidding to provide such

services; and

er must

publicly solicit offers to provide visitor services by issuing a

prospectus, when the Forest Service determines the following:

(1) There is a need for visitor services within the area of the

CSU;

(2) There is a need to limit authorized visitor use in the area

and/or the number of authorized operators;

(3) There is an opportunity for competitive bidding to provide such

services; and

(4) The proposed visitor services are consistent with the

applicable Forest Plan direction and all applicable laws and

regulations.

In all other situations, except as provided in proposed

Sec. 251.122 for historical operators, special use authorizations would

be issued non-competitively on a first-come, first-serve basis upon

application to the authorized officer in accordance with the rules at

subpart B.

In soliciting applications for special use authorizations for

visitor services, the authorized officer must include the selection

criteria in the prospectus describing the services to be provided. At a

minimum, the authorized officer's selection of the best offer shall be

based on an evaluation of the applicant's timely response to the

following criteria:

(1) The kind and quality of visitor service(s) to be provided:

(2) The experience and qualifications required of the operator to

demonstrate capability;

(3) The applicant's financial resources and status; and

(4) The amount of return to the Government.

In order to exercise the preference, a preferred operator must

submit a responsive offer under the terms of a public solicitation

generally referred to as a prospectus. If the preferred operator

submits the best overall offer, that operator would be awarded the

special use authorization if the preferred operator is determined to be

capable of carrying out the terms of the special use authorization

der to exercise the preference, a preferred operator must

submit a responsive offer under the terms of a public solicitation

generally referred to as a prospectus. If the preferred operator

submits the best overall offer, that operator would be awarded the

special use authorization if the preferred operator is determined to be

capable of carrying out the terms of the special use authorization. If

the best offer received in response to the solicitation is made by an

applicant other than a preferred operator, then the preferred operator,

who made the best offer of all the preferred operators, shall be given

the opportunity to amend the offer to meet the terms and conditions of

the best offer. The special use authorization would be awarded to that

preferred operator, if the authorized officer concludes that the

preferred operator's amended offer is substantially equal to the best

offer and that the preferred operator is capable of carrying out the

terms of the special use authorization. Otherwise, the special use

authorization will be awarded to the original overall best offer. By

allowing only the operator with the best offer among the preferred

operators to meet the terms and conditions of the overall best offer,

this section provides a process for dealing with offers from multiple

preferred operators in a way that encourages initial competitive offers

from all applicants, while still providing for the statutory

preferences.

If a preferred operator's offer under this subpart is in the form

of a joint venture, the offer shall be considered valid only when it

documents to the satisfaction of the authorized officer that the

preferred operator holds the controlling interest in the joint venture.

Native Corporations and local residents, who submit an offer in the

form of a joint venture with other persons, will retain their preferred

operator status so long as they have the controlling interest in the

joint venture

l be considered valid only when it

documents to the satisfaction of the authorized officer that the

preferred operator holds the controlling interest in the joint venture.

Native Corporations and local residents, who submit an offer in the

form of a joint venture with other persons, will retain their preferred

operator status so long as they have the controlling interest in the

joint venture. This provision allows business flexibility without

compromising the statutory intent of section 1307.

Proposed Section 251.124 Most Directly Affected Native Corporation

Determination

This section establishes procedures and criteria for determining

which Native Corporation is most directly affected by the establishment

or expansion of a particular CSU and, accordingly, is a preferred

operator with respect to that CSU. Before the award of the first

special use authorizations after the effective date of this subpart,

interested Native Corporations will be given the opportunity to be

considered for a determination of ``most directly affected''. In giving

notice of the application procedure, the authorized officer would make

clear that this is the only opportunity to apply for ``most directly

affected'' status for that particular CSU. In the event that more than

one Native Corporation is determined to be equally affected, each such

corporation will be considered a preferred operator. An authorized

officer's decision as to the ``most directly affected'' Native

Corporation or, if appealed under 36 CFR part 251, subpart C, the

reviewing officer's

decision, is applicable for all future visitor services for that

particular CSU.

Proposed Section 251.125 Preferred Operator Privileges and Limitations

ually affected, each such

corporation will be considered a preferred operator. An authorized

officer's decision as to the ``most directly affected'' Native

Corporation or, if appealed under 36 CFR part 251, subpart C, the

reviewing officer's

decision, is applicable for all future visitor services for that

particular CSU.

Proposed Section 251.125 Preferred Operator Privileges and Limitations

This proposed section specifies the privileges and limitations

accorded to preferred operators. Except as provided at

Sec. 251.122(d)(2)(ii) for historic operators, preferred operators

would have preference over all other applicants in the issuance of

special use authorizations. The preferences described in this section

could not be sold, assigned, transferred, or devised, directly or

indirectly. If an operator qualifies as a local resident for any part

of an area designated in a solicitation for a specific visitor service,

the operator shall be treated in matters related solely to that

solicitation as a local resident for the entire area covered by that

solicitation. Local residents and ``most directly affected'' Native

Corporations have equal priority for consideration in providing visitor

services. As with historical operators, the Forest Service does not

intend that preferred operators obtain an exclusive right to provide

visitor services to the exclusion of other individuals or entities.

Proposed Section 251.126 Appeal Procedures

This section of the proposed rule makes clear that decisions

related to the issuance of special use authorizations in response to

written Forest Service solicitations or to the modifications of special

use authorizations to reflect historical use may be appealed under

existing Forest Service appeal regulations in part 251 subpart C.

Conclusions

s.

Proposed Section 251.126 Appeal Procedures

This section of the proposed rule makes clear that decisions

related to the issuance of special use authorizations in response to

written Forest Service solicitations or to the modifications of special

use authorizations to reflect historical use may be appealed under

existing Forest Service appeal regulations in part 251 subpart C.

Conclusions

These regulations are needed to implement the provisions of ANILCA

concerning the rights and preferences granted to historical operators,

local residents, and ``most affected'' Native Corporations in the award

of special use authorizations for visitor services. For a number of

years following the passage of ANILCA, there was little need to limit

use or the number of special use authorizations for visitor services

within the CSUs administered by the Forest Service. With increasing

tourism and numbers of applicants for special use authorizations to

provide visitor services, there may be a need to limit the number of

special use authorizations in specific areas to protect resource

values. In these situations, special use authorizations will need to be

competitively awarded in a process that honors the statutory rights and

preferences. These proposed regulations are intended to provide that

process. Interested persons are invited to submit written comments,

suggestions, or objections regarding the proposed rule.

Regulatory Impact

s in specific areas to protect resource

values. In these situations, special use authorizations will need to be

competitively awarded in a process that honors the statutory rights and

preferences. These proposed regulations are intended to provide that

process. Interested persons are invited to submit written comments,

suggestions, or objections regarding the proposed rule.

Regulatory Impact

This proposed rule has been reviewed under USDA procedures and

Executive Order 12866 on Regulatory Planning and Review. It has been

determined that this is not a significant rule. This rule will not have

an annual effect of $100 million or more on the economy nor adversely

affect productivity, competition, jobs, the environment, public health

or safety, nor State or local governments. This rule will not interfere

with an action taken or planned by another agency nor raise new legal

or policy issues. Finally, this action will not alter the budgetary

impact of entitlements, grants, user fees, loan programs or the rights

and obligations of recipients of such programs. Accordingly, this

proposed rule is not subject to OMB review under Executive Order 12866.

Moreover, this proposed rule has been considered in light of the

Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and it is certified

that this action will not have a significant economic impact on a

substantial number of small entities as defined by that Act. The agency

estimates that less than 100 small entities would be affected by this

rule for the foreseeable future and the effect would not be a

significant economic one. The statute itself provides a competitive

advantage for Native Corporations and local residents which may qualify

as small entities. The rules merely provide the process by which the

statute can be implemented and, in and of themselves, do not add or

decrease any preference granted by the statute.

Environmental Impact

foreseeable future and the effect would not be a

significant economic one. The statute itself provides a competitive

advantage for Native Corporations and local residents which may qualify

as small entities. The rules merely provide the process by which the

statute can be implemented and, in and of themselves, do not add or

decrease any preference granted by the statute.

Environmental Impact

An environmental assessment has been prepared on this proposed rule

and is available from the office listed under ADDRESSES earlier in this

document. A determination of the significance of environmental impacts

of the proposed action will be made upon adoption of the final rule.

Reviewers may include comments on the environmental assessment along

with any comments submitted on the proposed rule.

No Takings Implications

This proposed rule has been analyzed in accordance with the

principles and criteria contained in Executive Order 12630, and it has

been determined that the proposed rule does not pose a risk of a taking

of Constitutionally-protected private property.

Controlling Paperwork Burdens on the Public

The information required to determine the most directly affected

Native Corporations in Sec. 251.124 of this proposed rule represents a

new information requirement as defined in 5 CFR part 1320, Controlling

Paperwork Burdens on the Public. In accordance with those rules and the

Paperwork Reduction Act of 1995, as amended (44 U.S.C. 3507), the

Forest Service is requesting Office of Management and Budget review and

approval of the information required for making the most affected

Native Corporation determinations.

The collections of information contained in Sec. 251.122 and

Sec. 251.123 of this proposed rule are for purposes of preparing an

offer in response to visitor services solicitation pursuant to 36 CFR

part 251, subpart B, and have been approved by the Office of Management

and Budget and assigned a clearance number of 0596-0082.

Description of Information Collection

Corporation determinations.

The collections of information contained in Sec. 251.122 and

Sec. 251.123 of this proposed rule are for purposes of preparing an

offer in response to visitor services solicitation pursuant to 36 CFR

part 251, subpart B, and have been approved by the Office of Management

and Budget and assigned a clearance number of 0596-0082.

Description of Information Collection

The following describes the information collection associated with

this rulemaking:

Title: Most directly affected Native corporation determination.

OMB Number: New.

Expiration Date of Approval: New.

Type of Request: The following describes a new collection

requirement and has not received approval by the Office of Management

and Budget.

Abstract: This paperwork collection provides the necessary

information for the Forest Service to determine which Alaska Native

corporations qualify for the statutory preference in the award

competitively issued special use authorizations for commercial visitor

services on designated lands within the National Forests in Alaska. The

Forest Service must determine which Native Corporations were most

affected by the establishment of particular Conservations System Units

(CSU) in order to provide the statutory priority required by the Alaska

National Interest Lands Conservation Act (16 U.S.C. 3197). The

collection of needed information will require time to review

instructions, search existing data sources, and to gather and maintain

data. Data collected in this information collection is not available

from other sources. This is a one time collection for each CSU.

Information gathering and ``most affected'' determinations will likely

be made on only one CSU annually.

Estimate of Burden: 20 hours.

Type of Respondents: Alaska Native Corporations.

eview

instructions, search existing data sources, and to gather and maintain

data. Data collected in this information collection is not available

from other sources. This is a one time collection for each CSU.

Information gathering and ``most affected'' determinations will likely

be made on only one CSU annually.

Estimate of Burden: 20 hours.

Type of Respondents: Alaska Native Corporations.

Estimated Number of Respondents: 10 per year.

Estimated Number of Responses per Respondent: 1.

Estimated Total Annual Burden on Respondents: 1 x 20 x 10=200

hours.

Comments are Invited on: (a) Whether the proposed collection of

information is necessary for the proper performance of the functions of

the agency, including whether the information will have practical

utility; (b) the accuracy of this agency's estimate of the burden of

the proposed collection of information; (c) ways to enhance the

quality, utility, and clarity of the information to be collected; and

(d) ways to minimize the burden of the collection of information on

respondents, including the use of automated collection techniques or

other forms of information technology.

Use of Comments

All comments received in response to this notice will be summarized

and included in the request for OMB approval. All comments will also

become a matter of public record.

Send comments regarding this burden estimate or any other aspect of

this collection of information, including suggestions for reducing the

burden to the Regional Forester, Alaska Region, at the address shown in

this document as well as to the: Forest Service Desk Officer, Office of

Information and Regulatory Affairs, Office of Management and Budget,

Washington, DC 20503.

Unfunded Mandates Reform

comments regarding this burden estimate or any other aspect of

this collection of information, including suggestions for reducing the

burden to the Regional Forester, Alaska Region, at the address shown in

this document as well as to the: Forest Service Desk Officer, Office of

Information and Regulatory Affairs, Office of Management and Budget,

Washington, DC 20503.

Unfunded Mandates Reform

Pursuant to Title II of the Unfunded Mandates Reform Act of 1995,

which the President signed into law on March 22, 1995, the Forest

Service has assessed the effects of this rule on State, local, and

tribal governments and the private sector. This rule does not compel

the expenditure of $100 million or more by any State, local, or tribal

governments or anyone in the private sector. Therefore, a statement

under section 202 of the Act is not required.

Civil Justice Reform Act

This proposed rule has been reviewed under Executive Order 12778,

Civil Justice Reform. If this proposed rule were adopted, (1) all state

and local laws and regulations that are in conflict with this proposed

rule or which would impede its full implementation would be preempted;

(2) no retroactive effect would be given to this proposed rule; (3) it

would not require administrative proceedings before parties may file

suite in court challenging its provisions.

List of Subjects in 36 CFR Part 251

Electric power, Mineral resources, National forest land uses,

National forests, Rights-of-way, and Water resources.

Therefore, for the reasons set forth in the preamble, it is

proposed to amend part 251 of title 36 of the Code of Federal

Regulations as follows:

PART 251--LAND USES

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

follows:

Authority: 16 U.S.C. 472, 551, 1134, 3170, 3197, 3210; and 30

U.S.C. 185; and 43 U.S.C. 1740, unless otherwise noted.

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

Subpart E--Revenue Producing Visitor Services in Alaska

posed to amend part 251 of title 36 of the Code of Federal

Regulations as follows:

PART 251--LAND USES

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

follows:

Authority: 16 U.S.C. 472, 551, 1134, 3170, 3197, 3210; and 30

U.S.C. 185; and 43 U.S.C. 1740, unless otherwise noted.

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

Subpart E--Revenue Producing Visitor Services in Alaska

Sec.

251.120 Applicability and scope.

251.121 Definitions.

251.122 Historical operator special use authorizations.

251.123 Preferred operator competitive special use authorization

procedures.

251.124 Most directly affected Native corporation determinations.

251.125 Preferred operator privileges and limitations.

251.126 Appeals.

Subpart E--Revenue Producing Visitor Services in Alaska

Sec. 251.120 Applicability and scope.

(a) These regulations implement section 1307 of Alaska National

Interest Lands Conservation Act (16 U.S.C. 3197) with regard to the

continuation of visitor services offered as of January 1, 1979, and the

granting of a preference to local residents and certain Native

Corporations to obtain special use authorizations for visitor services

on Conservation System Units of the Tongass and Chugach National

Forests in Alaska (hereafter CSUs).

(b) Except as may be specifically provided in this subpart, the

regulations at subpart B shall apply to special use authorizations

considered or issued under this subpart.

a preference to local residents and certain Native

Corporations to obtain special use authorizations for visitor services

on Conservation System Units of the Tongass and Chugach National

Forests in Alaska (hereafter CSUs).

(b) Except as may be specifically provided in this subpart, the

regulations at subpart B shall apply to special use authorizations

considered or issued under this subpart.

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

fishing.

Sec. 251.121 Definitions.

In addition to the definitions in subpart B of this part, the

following terms apply to this subpart:

Best offer means the offer, as determined by the authorized

officer, that best meets the selection criteria established in a

prospectus soliciting specific visitor services in CSUs in National

Forests in Alaska.

Conservation System Unit (CSU) as it relates to the Tongass and

Chugach National Forests in Alaska means a National Forest Monument or

any unit of the National Wild and Scenic River System, National Trail

System, or National Wilderness Preservation System.

Controlling interest means, in the case of a corporation, an

interest, beneficial or otherwise, of sufficient outstanding voting

securities or capital of the business, so as to permit the

authorization exercise of managerial authority over the actions and

operations of the corporation, or election of a majority of the board

of directors of the corporation. In the case of a partnership, limited

partnership, joint venture or individual entrepreneurship,

``controlling interest'' means a beneficial ownership of, or interest

in, the business entity so as to permit the exercise of managerial

authority over the actions and operations of the entity. In other

circumstances, ``controlling interest'' means any arrangement under

which a third party has the ability to exercise general management

authority over the actions or operations of the business

``controlling interest'' means a beneficial ownership of, or interest

in, the business entity so as to permit the exercise of managerial

authority over the actions and operations of the entity. In other

circumstances, ``controlling interest'' means any arrangement under

which a third party has the ability to exercise general management

authority over the actions or operations of the business.

Historical operator means a current holder of a valid special use

authorization for providing revenue producing visitor services on a CSU

under Forest Service jurisdiction that meets the following criteria:

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

in adequately providing visitor services in the same CSU;

(2) The holder has continued to lawfully provide the same or

similar types of visitor services within the same CSU; and

(3) The holder is otherwise determined by the authorized officer to

have a right to continue to provide the same or similar visitor

services.

Local area means that area within 100 miles of the location within

a CSU where any visitor services covered by a single solicitation by

the Forest Service are to be authorized.

Local resident means the following:

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

local area for 12 consecutive months before issuance of a solicitation

of applications for a use authorization for visitor services for a CSU

and who maintain their primary, permanent residence and business within

the local area and who whenever absent from this primary, permanent

residence, have the intention of returning to it. Factors demonstrating

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

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

indicated on

licenses issued by the State of Alaska, tax returns, and voter

registration.

residence and business within

the local area and who whenever absent from this primary, permanent

residence, have the intention of returning to it. Factors demonstrating

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

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

indicated on

licenses issued by the State of Alaska, tax returns, and voter

registration.

(2) For corporations. A corporation in which the controlling

interest is held by an individual or individuals who qualify as ``local

resident(s)'' within the meaning of this section. For non-profit

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

officers must qualify as ``local residents''.

Native Corporation has the same meaning as the term is defined in

section 102(6) of the Alaska National Interest Lands Conservation Act

(ANILCA).

Preferred operator means a Native Corporation that is determined,

pursuant to Sec. 251.124, to be ``most directly affected'' by

establishment or expansion of the CSU, or a local resident, as defined

in this section, who competes for a visitor service special use

authorization under Sec. 251.123 of this subpart.

Responsive offer is one that is timely received and meets the terms

and conditions of the solicitation document.

Visitor service means any service or activity for which persons who

visit a CSU pay a fee, commission, brokerage or other compensation

including such services as providing food, accommodations,

transportation, tours and outfitting and guiding, except the guiding of

sport hunting and fishing.

Sec. 251.122 Historical operator special use authorizations.

conditions of the solicitation document.

Visitor service means any service or activity for which persons who

visit a CSU pay a fee, commission, brokerage or other compensation

including such services as providing food, accommodations,

transportation, tours and outfitting and guiding, except the guiding of

sport hunting and fishing.

Sec. 251.122 Historical operator special use authorizations.

(a) A historical operator has a right to continue to provide

visitor services existing on or before January 1, 1979, in a CSU under

appropriate terms and conditions contained in a special use

authorization so long as such services are determined by the authorized

officer to be consistent with the purposes for which the CSU was

established. A historical operator may not operate without such as

authorization.

(b) Any person who qualifies as a historical operator under this

subpart and who wishes to exercise the rights and preferences granted

to historical operators under section 1307(a) of ANILCA must notify the

authorized officer responsible for the CSU. In determining whether a

person qualifies as a historical operator, the authorized officer has

the discretion to determine on a case-by-case basis whether visitor

services are the same or similar to those provided on or before January

1, 1979.

(c) Upon the authorized officer's determination that the person

qualifies as a historical operator, the authorized officer shall amend

the current special use authorization or issue a new special use

authorization to identify that portion of the authorized services that

are deemed to be historical operations. The special use authorization

shall identify the location(s), type(s), frequency(ies), or volume of

visitor services to be provided.

hat the person

qualifies as a historical operator, the authorized officer shall amend

the current special use authorization or issue a new special use

authorization to identify that portion of the authorized services that

are deemed to be historical operations. The special use authorization

shall identify the location(s), type(s), frequency(ies), or volume of

visitor services to be provided.

(d) When a historical operator's special use authorization expires,

the authorized officer shall offer to renew the special use

authorization for the same or similar visitor services so long as the

services provided under the previous special use authorization were

adequate, the services remain consistent with the purposes for which

the CSU was established or expanded, and the holder continues to

possess the capability to provide the visitor services adequately.

(1) If the operator accepts the renewal offer, the authorized

officer shall issue a new special use authorization that clearly

identifies the historical operations as required by paragraph (c) of

this section.

(2) If the authorized officer determines that it is necessary to

reduce the visitor services to be provided by a historical operator,

the authorized officer shall modify the historic operator's special use

authorization to reflect the reduced services as follows:

(i) If more than one historical operator provides services in the

area where visitor service capacity is to be reduced, the authorized

officer shall apportion the reduction among the historical operators,

taking into account historical operating levels and such other factors

as are relevant to achieve a proportionate reduction among the

operators.

(ii) If the reductions in visitor service capacity make it feasible

to support only one operator in an area, the authorized officer shall

select, through a competitive process that is limited to historical

operators only, the operator to receive the special use authorization

from among the historical operators.

actors

as are relevant to achieve a proportionate reduction among the

operators.

(ii) If the reductions in visitor service capacity make it feasible

to support only one operator in an area, the authorized officer shall

select, through a competitive process that is limited to historical

operators only, the operator to receive the special use authorization

from among the historical operators.

(e) Any of the following shall result in the loss of historical

operator status:

(1) Revocation of a special use authorization for historic types

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

conditions of the special use authorization;

(2) A historical operator's declination of a special use

authorization renewal offer made pursuant to paragraph (d) of this

section;

(3) A change in the controlling interest of the historical operator

through sale, assignment, devise, transfer, or otherwise except as

provided in paragraph (f) of this section; or

(4) An operator's failure to provide the authorized services for a

period of more than 24 consecutive months.

(f) A change in the controlling interest of a historical operator

that results only in the acquisition of the controlling interest by an

individual or individuals, such as a child or sibling, who were

personally engaged in the visitor service activities of the historical

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

historical operator's controlling interest for the purpose of this

subpart.

(g) Nothing in this section shall prohibit the authorized officer

from authorizing persons other than historical operators to provide

visitor services in the same area, so long as historical operators

receive authorization to provide visitor services at a level and scope

equal to those they provided on or before January 1, 1979.

perator's controlling interest for the purpose of this

subpart.

(g) Nothing in this section shall prohibit the authorized officer

from authorizing persons other than historical operators to provide

visitor services in the same area, so long as historical operators

receive authorization to provide visitor services at a level and scope

equal to those they provided on or before January 1, 1979.

(h) In the event that an authorized officer grants to a historical

operator an increase in scope or level of visitor services from that

provided on or before January 1, 1979, the historical operator has no

right of preference for the increased amount of authorized services. If

additional operations are authorized, the special use authorization

shall clearly indicate that the additional amount is not subject to the

historical operations preference.

Sec. 251.123 Preferred operator competitive special use authorization

procedures.

(a) The authorized officer shall publicly solicit offers to provide

visitor services when the Forest Service determines the following:

(1) There is a need for visitor services within the area of the

CSU;

(2) There is a need to limit authorized visitor use in the area

and/or the number of authorized operators;

(3) There is an opportunity for competitive bidding to provide such

services; and

(4) The proposed visitor services are consistent with the Forest

Plan direction and all applicable laws and regulations.

he following:

(1) There is a need for visitor services within the area of the

CSU;

(2) There is a need to limit authorized visitor use in the area

and/or the number of authorized operators;

(3) There is an opportunity for competitive bidding to provide such

services; and

(4) The proposed visitor services are consistent with the Forest

Plan direction and all applicable laws and regulations.

(b) In soliciting applications for special use authorizations, the

authorized officer shall include the selection criteria in the

prospectus describing the services to be provided. At a minimum, the

authorized officer's selection of the most responsive offer shall be

based on evaluation of the applicant's timely response to the following

criteria:

(1) The kind and quality of visitor service(s) to be provided;

(2) The experience and qualifications required of the operator to

demonstrate capability;

(3) Applicant's financial resources and status; and

(4) The amount of return to the Government.

(c) To qualify as a preferred operator under this subpart, an

applicant responding to a solicitation made under this section must be

determined by the authorized officer to be a local resident as defined

in Sec. 251.121 of this subpart, or the most directly affected Native

Corporation by establishment or expansion of the CSU covered by the

solicitation pursuant to Sec. 251.124 of this subpart.

(d) A qualified preferred operator shall be given preference,

pursuant to paragraph (e) of this section, over all other operators

except as provided for historical operators in section 251.122. of this

subpart.

51.121 of this subpart, or the most directly affected Native

Corporation by establishment or expansion of the CSU covered by the

solicitation pursuant to Sec. 251.124 of this subpart.

(d) A qualified preferred operator shall be given preference,

pursuant to paragraph (e) of this section, over all other operators

except as provided for historical operators in section 251.122. of this

subpart.

(e) If the best offer received in response to the solicitation is

made by an applicant other than a preferred operator, then the

preferred operator who made the best offer of all the preferred

operators shall be given the opportunity to amend its offer to meet the

terms and conditions of the best offer.

(1) If the preferred operator amends its offer, the authorized

officer shall award the special use authorization to the preferred

operator, if the following conditions are met:

(i) The authorized officer concludes the preferred operator's

amended offer is substantially equal to that of the best offer; and

(ii) The authorized officer determines the preferred operator is

capable of carrying out the terms of the special use authorization.

(2) The authorized officer shall award the special use

authorization to the applicant who made the initial best offer in

either of the following circumstances:

(i) The authorized officer concludes that the preferred operator's

amended offer is not substantially equal to the initial best offer; or

(ii) The authorized officer concludes that the preferred operator's

amended offer is substantially equal to the initial best offer, but the

operator is not capable of carrying out the terms of the special use

authorization.

(f) An offer from a preferred operator under this subpart, in the

form of a joint venture, shall be considered valid only when the offer

documents to the satisfaction of the authorized officer that the

preferred operator holds the controlling interest in the joint venture.

Sec. 251.124 Most directly affected Native corporation determination.

ng out the terms of the special use

authorization.

(f) An offer from a preferred operator under this subpart, in the

form of a joint venture, shall be considered valid only when the offer

documents to the satisfaction of the authorized officer that the

preferred operator holds the controlling interest in the joint venture.

Sec. 251.124 Most directly affected Native corporation determination.

(a) Before the award of the first special use authorization issued

after the effective date of this subpart pursuant to Sec. 251.123 for a

specific CSU, the authorized officer shall give notice to and provide

an opportunity for Native Corporations interested in providing visitor

services within the CSU to submit an application to be considered the

Native Corporation most directly affected by the establishment or

expansion of the CSU by or under the provisions of ANILCA. In giving

notice of the application procedure, the authorized officer shall make

clear that this is the only opportunity to apply for ``most directly

affected'' status for that particular CSU.

(1) At a minimum, an application from an interested Native

Corporation shall include the following information:

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

of incorporation; its articles of incorporation and structure; and the

name of the applicable CSU and the solicitation that the Native

Corporation is responding to; and

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

and

(iii) An assessment of the socioeconomic impacts, including changes

in historical and traditional use and landownership patterns and their

effects on the Native Corporation, resulting from the expansion or

establishment of the applicable CSU by ANILCA; and

(2) In addition to the minimum information required by paragraph

(a)(1) of this section, Native Corporations may submit such additional

information as they consider relevant.

mic impacts, including changes

in historical and traditional use and landownership patterns and their

effects on the Native Corporation, resulting from the expansion or

establishment of the applicable CSU by ANILCA; and

(2) In addition to the minimum information required by paragraph

(a)(1) of this section, Native Corporations may submit such additional

information as they consider relevant.

(b) Upon receipt of all applications from interested Native

Corporations, the authorized officer shall determine the ``most

directly affected'' Native Corporation considering the following

factors:

(1) Distance and accessibility from the corporation's population

center and/or business address to the applicable CSU; and

(2) Socioeconomic impacts, including changes in historical and

traditional use and landownership patterns and their effects on Native

Corporations resulting from the expansion or establishment of the

applicable CSU; and

(3) Information provided by Native Corporations and other

information considered relevant by the authorized officer to the

particular facts and circumstances related to the effects of the

establishment or expansion of the applicable CSU.

(c) In the event that more than one Native Corporation is

determined to be equally affected within the meaning of this section,

each such Native Corporation shall be considered a preferred operator

under this subpart.

(d) A corporation determined to be most directly affected for a CSU

will maintain that status for all future visitor service solicitations.

Sec. 251.125 Preferred operator privileges and limitations.

(a) Except as provided at Sec. 251.122(d)(2)(ii), preferred

operators have preference over all other applicants in the issuance of

special use authorizations pursuant to Sec. 251.123 of this subpart.

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

assigned, transferred, or devised, directly or indirectly.

icitations.

Sec. 251.125 Preferred operator privileges and limitations.

(a) Except as provided at Sec. 251.122(d)(2)(ii), preferred

operators have preference over all other applicants in the issuance of

special use authorizations pursuant to Sec. 251.123 of this subpart.

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

assigned, transferred, or devised, directly or indirectly.

(c) If an operator qualifies as a local resident for any part of an

area designated in the solicitation for a specific visitor service, in

matters related solely to that solicitation, the operator shall be

treated as a local resident for the entire area covered by that

solicitation.

(d) An offer from a preferred operator made in the form of a joint

venture is considered valid, only if the offer documents to the

satisfaction of the authorized officer, that the preferred operator

holds the controlling interest in the joint venture.

(e) Nothing in this subpart shall prohibit the authorized officer

from issuing special use authorizations to other applicants within the

CSU so long as the requirements of Sec. 251.123 are met.

(f) A preferred operator has no preference within a National Forest

in Alaska beyond that authorized by section 1307 of the Act and by

Sec. 251.123 of this subpart.

(g) Local residents and ``most directly affected'' Native

Corporations have equal priority for consideration in providing visitor

services.

Sec. 251.126 Appeals.

Decisions related to the issuance of special use authorizations in

response to written solicitations by the Forest Service or to the

modification of special use authorizations to reflect historical use

are subject to administrative appeal under subpart C of this part.

Dated: March 26, 1997.

David G. Unger,

Associate Chief.

[FR Doc. 97-10698 Filed 4-24-97; 8:45 am]

BILLING CODE 3410-11-M