[Code of Federal Regulations]
[Title 50, Volume 5]
[Revised as of October 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 50CFR36.37]

[Page 389-393]
 
                    TITLE 50--WILDLIFE AND FISHERIES
 
 CHAPTER I--UNITED STATES FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE 
                          INTERIOR--(Continued)
 
PART 36_ALASKA NATIONAL WILDLIFE REFUGES--Table of Contents
 
                       Subpart D_Other Refuge Uses
 
Sec. 36.37  Revenue producing visitor services.

    (a) Applicability. (1) Except as otherwise provided for in this 
paragraph, the regulations contained in this section apply to new 
visitor services provided within all National Wildlife Refuge areas in 
Alaska.
    (2) The rights granted by this section to historical operators, 
preferred operators, and Cook Inlet Region, Incorporated, are not 
exclusive. The Refuge Manager may authorize other persons to provide 
visitor services on refuge lands. Nothing in this section shall require 
the Refuge Manager to issue a visitor services permit if not otherwise 
mandated by statute to do so. Nothing in this section shall authorize 
the Refuge Manager to issue a visitor services permit to a person who is 
not capable of carrying out its terms and conditions in a satisfactory 
manner.
    (3) This section does not apply to the guiding of sport hunting or 
sport fishing.
    (b) Definitions. The following definitions shall apply to this 
section:
    (1) Best offer means a responsive offer that best meets, as 
determined by the Refuge Manager, the selection criteria contained in a 
competitive solicitation for a visitor services permit.
    (2) Controlling interest, in the case of a corporation means an 
interest, beneficial or otherwise, of sufficient outstanding voting 
securities or capital of the business, so as to permit exercise of final 
managerial authority over the actions and operations of the corporation, 
or election of a majority of the Board of Directors of the corporation.
    (3) Controlling interest in the case of a partnership, limited 
partnership, joint venture or individual entrepreneurship means a 
beneficial ownership of or interest in the entity so as to permit the 
exercise of final managerial authority over the actions and operations 
of the entity.
    (4) Controlling interest in other circumstances means any 
arrangement under which a third party has the ability to exercise 
general management authority over the actions or operations of the 
business.
    (5) Historical operator means any person who:
    (i) On or before January 1, 1979, was lawfully engaged in adequately 
providing any type of visitor service in a refuge within the scope of 
paragraph (c) of this section;
    (ii) Has continued to lawfully provide that visitor service; and
    (iii) Is otherwise determined by the Refuge Manager to have a right 
to continue to provide such services or similar services pursuant to 
paragraph (c) of this section.
    (6) Local area means that area in Alaska within 100 miles of the 
location within a refuge where any of the visitor service is authorized.
    (7) Local resident means:
    (i) For individuals. Those individuals that have maintained their 
primary, permanent residence and business within the local area for the 
past twelve (12) consecutive months and whenever absent from this 
primary, permanent residence, have the intention of returning to it. 
Factors demonstrating the location of an individual's primary, permanent 
residence and business may include, but are not limited to, the 
permanent address indicated on licenses issued by the State of

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Alaska, tax returns, and voter registrations.
    (ii) 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.''
    (8) Native Corporation means the same as defined in section 102(6) 
of ANILCA.
    (9) Preferred operator means a local resident or Native Corporation 
which is entitled to a preference under this section in the award of a 
permit, and as otherwise provided under section 1307(b) of ANILCA.
    (10) A responsive offer means one which is timely made and meets the 
terms and conditions of the solicitation document.
    (11) Similar visitor service means that visitor service authorized 
by the Refuge Manager to be provided on a refuge and determined by the 
Refuge Manager, on a case by case basis, to be similar to an established 
service being provided by a historical operator.
    (12) 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 excepting the guiding 
of sport hunting and fishing. This also includes 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.
    (13) Right of first refusal means, as it relates to section 1307(a) 
of ANILCA, a reasonable opportunity for a historical operator to review 
a description of the new similar service and the terms and conditions 
upon which it is to be provided to determine if the historical visitor 
service operator wishes to provide the service. As it relates to section 
1307(c) of ANILCA, it refers to the opportunity for Cook Inlet Region, 
Incorporated to have the first opportunity to provide new visitor 
services on the Kenai National Wildlife Refuge in the Cook Inlet Region.
    (c) Visitor services existing on or before January 1, 1979, 
``historical operators''. (1) A historical operator shall have a right 
to continue to provide visitor services or similar services within such 
area, under appropriate terms and conditions, so long as such services 
are determined by the Refuge Manager to be consistent with the purposes 
for which the refuge was established. A historical operator must obtain 
a permit from the refuge manager to conduct the visitor services. The 
permit shall be for a fixed term and specified area, and shall contain 
such terms and conditions as are in the public interest. Failure to 
comply with the terms and conditions of the permit may result in 
cancellation of the authorization and consequent loss of historical 
operator rights under this section. Nothing in this section shall 
prohibit the Refuge Manager from permitting persons, in addition to 
historical operators, to provide visitor services in the refuge at the 
Refuge Manager's discretion so long as historical operators are 
permitted to conduct a scope or level of visitor services equal to or 
greater than those provided prior to January 1, 1979, under terms and 
conditions consistent with this section. A historical operator may be 
permitted by the Refuge Manager, under separate authority, to increase 
the scope or level of visitor services provided prior to January 1, 
1979, but no historical operating rights shall be obtained in such 
increase.
    (2) A historical operator may also apply to the Refuge Manager for a 
permit or amended permit to provide similar types of visitor services. 
Granting the request will not result in an increase in the scope or 
level of service in excess of those provided as of January 1, 1979, by 
the requesting historical operator. The Refuge Manager shall grant the 
request if such visitor services are determined by the Refuge Manager to 
be:
    (i) Consistent with the management of refuge resources and the 
purposes for which the refuge area was established;
    (ii) Similar to the visitor services provided by the historical 
operator prior to January 1, 1979; and
    (iii) Consistent with the legal rights of any other person.

[[Page 391]]

    (3) When a historical operator permit has expired, and if the 
visitor services permitted by it were adequately provided and consistent 
with the purposes of the refuge as determined by the Refuge Manager, the 
Refuge Manager shall renew the permit for a fixed term consistent with 
such new terms and conditions as are in the public interest. Should a 
historical operator decline to accept an offer of renewal, its rights as 
a historical operator shall be considered as terminated.
    (4) If the Refuge Manager determines that permitted visitor services 
must be curtailed or reduced in scope or season to protect refuge 
resources, or for other purposes, the Refuge Manager shall require the 
historical operator to make such changes in visitor services. If more 
than one historical operator providing the same type of visitor services 
is required to have those services curtailed, the Refuge Manager shall 
establish a proportionate reduction of visitor services among all such 
historical operators, taking into account historical operating levels 
and other appropriate factors, so as to achieve a fair curtailment of 
visitor services among the historical operators. If the level of visitor 
services must be so curtailed that only one historical operator feasibly 
may continue to provide the visitor services, the Refuge Manager shall 
select one historical operator to continue to provide the curtailed 
visitor services through a competitive selection process.
    (5) The rights of a historical operator shall terminate if the 
historical operator fails to provide the visitor services under the 
terms and conditions of a permit issued by the Refuge Manager or fails 
to provide the visitor services for a period of more than twenty four 
(24) consecutive months.
    (6) The rights of a historical operator under this section shall 
terminate upon a change, after January 1, 1979, in the controlling 
interest of the historical operator through sale, assignment, devise, 
transfer or otherwise.
    (7) The Refuge Manager may authorize other persons to provide 
visitor services in a refuge in addition to historical operators, as 
long as such other persons conduct the services in a manner compatible 
with the purposes of the refuge.
    (d) Visitor services initially authorized after January 1, 1979, 
``preferred operators''. (1) In selecting persons to provide, and in 
permitting any type of visitor service, excepting guided hunting or 
fishing, the Refuge Manager will give a preference to preferred 
operators determined qualified to provide such visitor services. 
Preferences for most directly affected Native Corporation(s) and local 
residents are equal and are not additive.
    (2) In selecting persons to provide any type of visitor service for 
refuges subject to a preferred operator preference under this section, 
the Refuge Manager will publicly solicit competitive offers for persons 
to apply for a permit, or the renewal of a permit, to provide such 
visitor service pursuant to Service procedures. Preferred operators must 
submit a responsive offer to such solicitation in order to effect their 
preference. If, as a result of the solicitation, an offer from a person 
other than a preferred operator is determined to be the best offer and 
that offeror is determined to be capable of carrying out the terms of 
the permit, the preferred operator which submitted the most responsive 
offer shall be given an opportunity to substantially equal the best 
offer received by amending its offer. If the amended offer of the 
preferred operator is considered by the Refuge Manager as being 
substantially equal to the terms of the best offer, the preferred 
operator, if determined to be capable of carrying out the terms of the 
permit, shall be awarded the visitor service permit. If the preferred 
operator fails to meet these requirements, the Refuge Manager shall 
award the permit to the person who submitted the best offer in response 
to the solicitation. The Native Corporation(s) determined to be ``most 
directly affected'' under this section and local residents have equal 
preference.

[[Page 392]]

    (3) Nothing in this section shall prohibit the Refuge Manager from 
authorizing persons other than preferred operators to provide visitor 
services in refuge areas so long as the procedures described in this 
section have been followed with respect to preferred operators. 
Preferred operators are not entitled by this section to provide all 
visitor services in a qualified refuge.
    (4) An offer from a Native Corporation or a local corporation under 
this section must document its controlling interest in the entity or in 
the case of a joint venture, all partners, making the offer.
    (5) The preferences described in this section may not be sold, 
assigned, transferred, or devised, directly or indirectly.
    (e) Preference to Cook Inlet Region, Incorporated (CIRI). (1) Cook 
Inlet Region, Incorporated, in cooperation with village corporations 
within Cook Inlet Region when appropriate, shall have a right of first 
refusal to provide new visitor services within that portion of the Kenai 
National Moose Range (Kenai National Wildlife Refuge) within the 
boundaries of Cook Inlet Region. The CIRI shall have ninety (90) days 
from receipt of a prospectus in which to exercise its right.
    (2) In order to exercise this right of first refusal, CIRI must 
submit an offer responsive to the terms of a visitor services 
solicitation. If CIRI makes such an offer and is determined by the 
Refuge Manager to be capable of carrying out the terms of the special 
use permit, it shall be awarded the permit. If it does not, the permit 
may be awarded to another person pursuant to a showing that such other 
person can carry out the conditions of the special use permit in a 
manner compatible with the purposes of the refuge. An offer being made 
by CIRI under this section must document controlling interest by CIRI 
when made in cooperation with village corporations within the Cook Inlet 
Region. The CIRI right of first refusal shall have precedence over the 
rights of preferred operators.
    (3) The right of first refusal described in this section may not be 
sold, transferred, devised, or assigned, directly or indirectly.
    (f) Most directly affected Native Corporation determination. (1) 
Prior to the issuance of a solicitation document for any new visitor 
service in a refuge, the Refuge Manager shall provide an opportunity for 
any Native Corporation interested in providing visitor services within 
that refuge to submit an application to the Refuge Manager to be 
determined ``most directly affected'' Native Corporation. The 
application shall include but not be limited to, the following 
information:
    (i) The name, address, and telephone number of the Native 
Corporation, the date of incorporation, its articles of incorporation 
and structure, and the name of the applicable refuge area;
    (ii) The location of the corporation's population center or centers;
    (iii) An assessment of the socioeconomic impacts, including 
historical and traditional use, and their effects on the Native 
Corporation as a result of the expansion or establishment of the refuge; 
and
    (iv) Any other information the Native Corporation believes is 
relevant.
    (2) Upon receipt of all applications from interested Native 
Corporations, the Refuge Manager will determine the ``most directly 
affected'' Native Corporation based on, but not limited to, the 
following criteria:
    (i) The number of acres of surface land within and adjoining the 
refuge that the Native Corporation owns, or which has been selected 
under the Alaska Native Claims Settlement Act, unless such selection is 
determined to be invalid or is relinquished;
    (ii) The distance and accessibility from the Native Corporation's 
population center and/or business address to the applicable refuge; and
    (iii) The socio-economic impacts, including historic and traditional 
use, and their effects as a result of the expansion or establishment of 
the refuge.
    (3) In the event that more than one Native Corporation is determined 
to be equally affected, each such Native Corporation shall be considered 
as a preferred operator under this section.
    (4) The Refuge Manager's ``most directly affected'' Native 
Corporation determination or when requested, the Regional Director's 
appeal decision for a

[[Page 393]]

refuge is applicable for all new visitor services in that refuge.
    (5) Any Native Corporation that has not applied for a most directly 
affected Native Corporation determination may apply for a determination 
upon issuance of a future solicitation for a new visitor service. A 
corporation determined to be most directly affected for a refuge will 
maintain that status for all future visitor service solicitations.
    (g) Appeal procedures. Any person(s) who believe that they have been 
improperly denied rights with respect to providing visitor services 
under this section may appeal the denial to the Regional Director. Such 
an appeal must be submitted in writing within forty-five (45) days of 
receipt of the denial from which an appeal is sought. The appeals 
process as defined in 50 CFR subpart F, 36.41(b) will apply with 
exception of the period of time allowed to file an appeal.

[62 FR 1842, Jan. 14, 1997]