[Federal Register Volume 64, Number 125 (Wednesday, June 30, 1999)]
[Proposed Rules]
[Pages 35516-35536]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-16490]
[[Page 35515]]
_______________________________________________________________________
Part III
Department of the Interior
_______________________________________________________________________
National Park Service
_______________________________________________________________________
36 CFR Part 51
Concession Contracts; Proposed Rule
Federal Register / Vol. 64, No. 125 / Wednesday, June 30, 1999 /
Proposed Rules
[[Page 35516]]
DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Part 51
RIN 1024-AC72
Concession Contracts
AGENCY: National Park Service, Interior.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would amend regulations on concession
contracts to comply with the requirements of Title IV of the National
Parks Omnibus Management Act of 1998 (the ``1998 Act''), which provides
new legislative authorities, policies and requirements for the
solicitation, award and administration of National Park Service
concession contracts.
DATES: We will accept written comments, suggestions or objections on or
before August 30, 1999.
ADDRESSES: Written comments should be sent to the Concessions Program
Manager, National Park Service, 1849 ``C'' Street, NW, Washington, DC
20240.
FOR FURTHER INFORMATION CONTACT: Wendelin Mann, Concession Program,
National Park Service, 1849 ``C'' Street, NW, Washington, DC 20240
(202/565-1219).
SUPPLEMENTARY INFORMATION: The 1998 Act has established a new statutory
framework for the solicitation, award and administration of National
Park Service concession contracts. Concession contracts are the form of
governmental authorization used to permit private businesses
(``concessioners'') to provide visitor services in areas of the
national park system. Visitor services include lodging, food service,
merchandising, transportation, outfitting and guiding, and similar
activities.
The National Park Service has been awarding and administering
concession contracts in various forms since its establishment in 1916.
In 1965, Congress formally established by the Concession Policies Act
of 1965 (the ``1965 Act'') a number of policies and procedures
regarding concession contracts. 36 CFR part 51 as it presently exists
implemented the 1965 law. On November 13, 1998, the Congress
substantially revised these policies and procedures by passage of the
1998 Act.
General Content
The proposed rule has two major purposes. The first is to set forth
procedures as to how concession contracts are to be solicited and
awarded by the National Park Service under the 1998 Act. With certain
limited exceptions, the 1998 Act requires competitive awards of
concession contracts. In some circumstances, an existing satisfactory
concessioner may have a right to match the terms of a competing
proposal for a new concession contract.
Second, unlike the existing 36 CFR part 51, the proposed rule sets
forth in detail the nature of the compensatory interest in capital
improvements a concessioner may construct on park lands under the terms
of a concession contract. This interest, called a ``leasehold surrender
interest,'' is described at length in the 1998 Act. It is our intention
to establish appropriate contract terms and conditions for leasehold
surrender interests by this rule so as to assure that the requirements
of the 1998 Act are strictly followed. Accordingly, the leasehold
surrender interest subpart of the proposed rule is lengthy. However,
concession contracts will be proportionately shorter as they will refer
to the regulations with respect to leasehold surrender terms and
conditions.
The proposed rule also contains a number of other provisions
implementing the policies and procedures of the 1998 Act.
Subpart Content
Subpart A
Authority and Purpose. Subpart A of the rule describes the
authority for the rule, its scope, and the scope of concession
contracts in general. It also describes the statutory policies that
underlie concession contracts.
Subpart B
General Definitions. Subpart B provides a number of definitions of
terms that are used throughout the rule. Readers should refer to these
definitions whenever a defined term is used in the text of the rule.
Subpart C
Solicitation, Selection and Award procedures. Subpart C describes
general procedures for competitive solicitation, selection and award of
concession contracts in compliance with the 1998 Act. Except as
described in subpart D, we must award all concession contracts on a
competitive basis. As part of the competitive process, however, we will
give great emphasis to the responsiveness of concession contract
proposals to the objectives of protecting, conserving, and preserving
resources of park areas, including, but not limited to, the conduct of
environmentally enhancing operational programs.
Among other matters, prospectuses must set forth specific
environmentally enhancing operational objectives and challenge offerors
to propose means to meet or exceed these objectives. It is our
intention to ``green'' both government and concessioner operations in
park areas so as to make them a nationwide model and example. The
Secretary, the National Park Service and current concessioners are
already actively pursuing the ``greening'' program, focussing on such
activities as recycling, waste minimization, environmentally preferable
procurement (``green procurement''), and hazardous waste response
capabilities.
The following chart summarizes the process set forth in Subpart C
for evaluating proposals in compliance with the 1998 Act to select the
best proposal.
Summary of Process for Evaluating Proposals
----------------------------------------------------------------------------------------------------------------
If two or more are substantially
Evaluate the proposals for: Select the one proposal that: equal:
----------------------------------------------------------------------------------------------------------------
1. Responsiveness to the prospectus Is responsive to the prospectus...... Continue with all responsive
(Sec. 51.14). proposals. (Reject any that are not
responsive) (Sec. 51.14).
2. The four principal factors (Sec. Is assessed as the best overall Continue with all substantially
51.20(a)-(d)). proposal. equal proposals. (Reject any that
are unacceptable under any of these
factors) (Sec. 51.24).
3. Program for environmental Provides the ``most substantial, Continue with all substantially
enhancement (Sec. 51.20(a) comprehensive and effective program equal proposals.
subfactor). for environmental enhancement''.
Unless Another proposal provides,
through higher than minimum
franchise fees, substantively
greater benefits for the
preservation of the resource
[[Page 35517]]
Then Select that other proposal
4. The fifth principal factor (Sec. Is assessed as the best proposal with Continue with all substantially
51.20(e)). respect to this factor. equal proposals.
5. Secondary factors (Sec. 51.22). Is assessed as best proposal with Continue with all substantially
respect to the secondary factor. equal proposals.
6. Additional selection factors Meets the selection factors better Request ``best and final'' proposals
described in the prospectus (if than any other remaining proposal. from all remaining offerors. Repeat
any)(Sec. 51.23b). evaluation for all ``best and
final'' proposals (Sec. 51.23a).
----------------------------------------------------------------------------------------------------------------
Subpart D
Non-Competitive Award of Concession Contracts. Subpart D describes
the three limited situations in which we may make non-competitive
awards of concession contracts. In certain circumstances we may extend
a concession contract for up to three years on a non-competitive basis,
we may award a temporary contract for a term of no more than three
years on a non-competitive basis, and, we may award a concession
contract on a non-competitive basis in extraordinary circumstances if
certain findings are made and special procedures followed.
Subpart E
Right of Preference. Subpart E describes the right of preference to
a new concession contract that may be obtained by certain existing
satisfactory concessioners. Only satisfactory outfitter and guide
concessioners or satisfactory concessioners annually grossing under
$500,000 are eligible for the preference. If a concessioner is eligible
for the preference, it must submit a responsive offer pursuant to the
prospectus issued for the new contract. If the concessioner does so, it
is entitled under specified conditions to match the terms of a better
proposal for the concession contract.
Subpart F
Leasehold Surrender Interest. Subpart F first defines a number of
terms necessary to understand the leasehold surrender provisions of the
rule. You should refer to these definitions whenever the defined terms
are used in the text of the rule. Subpart F then sets forth the terms
and conditions of leasehold surrender interests which you may obtain
under a concession contract. Generally, a leasehold surrender interest
constitutes a right of a concessioner to receive payment for capital
improvements a concessioner makes on park area lands. As stated above,
the terms and conditions of leasehold surrender interests are very
detailed as we intend that these terms and conditions will be
incorporated by reference into concession contracts, making concession
contracts proportionately shorter.
Subpart G
Possessory Interest. Subpart G sets forth transition procedures
with respect to the form of compensatory interest (``possessory
interest'') obtained by concessioners under certain concession
contracts entered into under the 1965 Act and concession contracts to
be entered into under the 1998 Act. In general terms, a 1965 Act
concessioner may either receive full compensation for existing
possessory interest as described in the applicable contract or convert
the possessory interest to a leasehold surrender interest if it seeks
and is awarded a new concession contract.
Subpart H
Concession Contract Provisions. Subpart H describes in general the
terms of certain concession contract provisions that reflect the
policies and procedures of the 1998 Act.
Subpart I
Assignment or Encumbrance of Concession Contracts. Subpart I sets
forth the standards and procedures applicable to our approval of
assignments of concession contracts and encumbrance of concessioner
assets.
Subpart J
Information and Access to Information. Subpart J describes the
types of records a concessioner must retain for the purposes of our
concession contract administration, the access rights of the government
to the records, and the types of concessioner information that we make
available to the public.
Subpart K
The Effect of the 1998 Act's Repeal of the 1965 Act. Subpart K
describes the effect of the 1998 Act's repeal of the 1965 Act by the
1998 Act. In this connection, section 415 of the 1998 Act repealed the
1965 Act but states that the repeal does not affect the validity of any
concession contract or permit entered into under the 1965 Act. However,
Section 415 also states that the 1998 Act will apply to existing
contracts or permits to the extent that the provisions of the 1998 Act
are not inconsistent with the terms and conditions of the existing
concession contract or permit.
Questions have arisen in this regard as to the possible
continuation of the right of preference in renewal previously provided
to existing satisfactory concessioners by section 5 of the 1965 Act. It
is our position, subject to consideration of public comments on this
matter, that the 1998 Act repealed this right of preference in renewal
as the right was statutory in nature, not contractual. However, the
proposed rule also states that we will provide an existing satisfactory
concessioner a right of preference as otherwise described in the
proposed regulations if a particular concession contract or permit in
effect as of November 13, 1998, is determined to have provided a
preference in renewal as a matter of contract right. We particularly
request public comment on this matter.
Subpart L
Information Collection. Subpart L sets forth information collection
requirements of the rule.
Drafting Information
The primary authors of this rule are Lars A. Hanslin, Special
Assistant to the Director, National Park Service, and Wendelin M. Mann,
Concession Program, National Park Service.
Compliance With Laws, Executive Orders and Departmental Policy
Regulatory Planning and Review (E.O. 12866)
This rule is a significant rule and has been reviewed by the Office
of Management and Budget review under Executive Order 12866.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business
[[Page 35518]]
Regulatory Enforcement Fairness Act. This rule does not have an annual
effect on the economy of $100 million or more; will not cause a major
increase in costs or prices for consumers, individual industries,
Federal, State or local government agencies, or geographic regions; and
does not have significant adverse effects on competition, employment,
investment, productivity, innovation, or the ability of U.S.-based
enterprises to compete with foreign-based enterprises. The primary
effect of the proposed rule is to establish policies and procedures for
the solicitation, award and administration of National Park Service
concession contracts required by the 1998 Act.
Regulatory Flexibility Act
The purpose of this rule is to describe policies and procedures for
the solicitation, award and administration of National Park Service
concession contracts in accordance with the 1998 Act. The Department of
the Interior is analyzing what, if any, economic effects this rule will
have on small entities under the Regulatory Flexibility Act (5 U.S.C.
601 et seq.). As of the promulgation of this rule, there are only
approximately 630 National Park Service concession contracts and
permits. It is likely that upon implementation of this rule and related
authorities, this number will decrease, perhaps to as few as 350, as
alternative authorities for providing visitor services in areas of the
National Park System are now available. Consistent with the Regulatory
Flexibility Act, the Department of the Interior will publish in the
Federal Register its initial regulatory flexibility analysis and invite
public comment on this analysis.
Unfunded Mandates Reform Act
The National Park Service has determined and certifies pursuant to
the Unfunded Mandates Reform Act (2 U.S.C. 1502 et seq.) that this rule
will not impose a cost of $100 million or more in any given year on
local, State, tribal governments or private entities. As stated above,
the rule imposes no costs on any entity except for application expenses
for businesses that seek to be awarded a National Park Service
concession contract. A statement containing the information required by
the Unfunded Mandates Reform Act is not required.
Takings. (E.O. 12630)
In accordance with Executive Order 12360, the rule does not have
significant takings implications. The rule has no effect on private
property. A takings implications assessment is not required.
Federalism
In accordance with Executive Order 12612, the rule does not have
sufficient federalism implications to warrant the preparation of a
federalism assessment. The rule imposes no requirements on any
governmental entity other than the National Park Service.
Civil Justice Reform (E.O. 12988)
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and does not meet the requirements of sections 3(a) and
3(b)(2) of the Order.
Paperwork Reduction Act
This rule requires an information collection from ten or more
parties so a submission under the Paperwork Reduction Act is required.
The information collection for submission of offers in response to
concession prospectuses is covered by OMB Approval No. 1024-1025,
effective through December 31, 1999. An information collection for
proposed sales of concession operations was previously covered by OMB
Approval No 1024-0126, which expired January 31, 1996. An OMB form 83-I
has been submitted to OMB for approval.
This information is solicited to assist in the administration of
National Park Service concession contracts. The general public is not
required to provide information by this rule. The public reporting
burden relates only to persons or entities applying to become National
Park Service concessioners. The National Park Service estimates that
approximately 20 large and 80 small authorizations will expire each
year. On average, the National Park Service receives approximately 4
offers for each large authorization and 2 for each small authorization.
Estimated time to prepare a large offer is 60 working days (480 burden
hours), and 30 working days (240 burden hours) for a small offer. The
National Park Service estimates the average cost per hour at $40,
resulting in an annual cost of $3,072,000. Likewise, the National Park
Service receives approximately 20 requests to sell or transfer
concession authorizations each year. The National Park Service
estimates that approximately 80 hours are required to prepare an
application, and only 1 application is submitted per transaction. Based
on an average cost of $40 per hour, the annual cost would be $64,000.
The total of these estimated annual costs is $3,136,000.
Comments on the information collection aspect of this rule should
be directed to the Attention: Desk Officer for the Interior Department,
Office of Information and Regulatory Affairs, Office of Management and
Budget, Washington, DC 20503. Comments should also be directed to the
Information Collection Officer, National Park Service, 1849 C Street,
NW, Washington, DC 20240. OMB has up to 60 days to approve or
disapprove the information collection but may respond after 30 days.
Therefore, public comments should be submitted to OMB within 30 days in
order to assure their maximum consideration.
National Environmental Policy Act
This rule does not constitute a major federal action significantly
affecting the quality of the human environment. A detailed statement
under the National Environmental Policy Act is not required. The rule
will not increase public use of park areas, introduce noncompatible
uses into park areas, conflict with adjacent land ownerships or land
uses, or cause a nuisance to property owners or occupants adjacent to
park areas. Accordingly, this rule is categorically excluded from the
procedural requirements of the National Environmental Policy Act by 516
DM 6, App. 7.4A(10).
Clarity of this Rule
Executive Order 12866 requires federal agencies to write
regulations that are easy to understand. Comment is invited on how to
make this rule easier to understand, including answers to the following
questions: (1) Are the requirements in the rule clearly stated? (2)
Does the rule contain undefined technical language or jargon that
interferes with its clarity? (3) Does the format of the rule (grouping
and order of sections, use of headings, paragraphing, etc.) aid in or
reduce its clarity? (4) Would the rule be easier to understand if it
were divided into more but shorter sections? (5) Is the description of
the rule in the ``Supplementary Information'' section of the preamble
helpful in understanding the proposed rule?'' What else could be done
to make the rule easier to understand?
Please send a copy of any comments that concern how this rule could
be made easier to understand to: Office of Regulatory Affairs,
Department of the Interior, Room 7229, 1849 C Street NW, Washington, DC
20240.
List of Subjects in 36 CFR Part 51
Concessions, Government contracts, National parks.
[[Page 35519]]
In consideration of the forgoing, 36 CFR Part 51 is proposed to be
revised to read as follows:
PART 51--CONCESSION CONTRACTS
Subpart A--Authority and Purpose
Sec.
51.1 What does this part cover?
51.2 What is the policy underlying concession contracts?
Subpart B--General Definitions
51.3 How are terms defined in this part?
Subpart C--Solicitation, Selection and Award Procedures
51.4 How will the Director invite the general public to apply for
the award of a concession contract?
51.5 What information will the prospectus include?
51.6 Will a concession contract be developed for a particular
potential offeror?
51.7 How will information be provided to a potential offeror after
the prospectus is issued?
51.8 Where will the Director publish the notice of availability of
the prospectus?
51.9 How do I get a copy of the prospectus?
51.10 How long will I have to submit my proposal?
51.11 May the Director amend, extend, or terminate a prospectus or
solicitation?
51.12 Do I have any rights if the Director amends, extends or
terminates a prospectus or solicitation?
51.13 Are there any other procedures that I must follow or that
apply to the solicitation or to the selection of the best proposal?
51.14 When will the Director determine if proposals are responsive?
51.15 What is a ``responsive proposal''?
51.16 What happens if no responsive proposals are submitted?
51.17 May I clarify, amend or supplement my responsive proposal
after it is submitted?
51.18 How will the Director select an offeror for award of the
concession contract?
51.19 How will the Director select the best proposal?
51.20 What are the five principal selection factors?
51.21 How will the Director apply the five selection factors and
select the best proposal?
51.22 When will the Director apply secondary factors?
51.23 How will the Director select the best proposal if two or more
proposals are assessed as equal after the Director has applied the
principal and secondary factors?
51.24 What happens if a proposal is rated ``unacceptable'' under
any of the first four principal selection factors or if the offeror
is not a qualified person?
51.25 Must the Director award the concession contract that is set
forth in the prospectus?
51.26 Does this part limit the authority of the Director?
51.27 When must the selected offeror execute the concession
contract?
51.28 After the selected offeror executes the concession contract,
when may the Director execute the concession contract?
Subpart D--Non-Competitive Award of Concession Contracts
51.29 May the Director extend an existing concession contract
without a public solicitation?
51.30 May the Director award a temporary concession contract
without a public solicitation?
51.31 Are there any other circumstances in which the Director may
award a concession contract without public solicitation?
Subpart E--Right of Preference
51.32 Does the existence of a preferred offeror and a possible
right of preference limit the authority of the Director to establish
the terms of a concession contract?
51.33 What three conditions must be met before the Director
determines that a prior concessioner is a preferred offeror?
51.34 How will the Director determine that a concession contract is
a qualified concession contract?
51.35 How will the Director determine that a concession contract is
an ``outfitter and guide concession contract''?
51.36 What are some examples of outfitter and guide concession
contracts?
51.37 What facts and circumstances will the Director take into
account when determining if a concession contract is an outfitter
and guide concession contract?
51.38 What are some circumstances that will indicate that outfitter
and guide operations are conducted in the backcountry?
51.39 If the concession contract grants a compensable interest in
real property improvements, will the Director find that the
concession contract is an outfitter and guide concession contract?
51.40 Are there exceptions to this compensable interest
prohibition?
51.41 Who will make the determination that a concession contract is
an outfitter and guide contract?
51.42 How will the Director determine if a prior concessioner was
satisfactory for purposes of this part?
51.43 Will a prior concessioner that has operated for less than 50%
of the term of a concession contract be considered a satisfactory
operator?
51.44 May the Director determine that a prior concessioner has not
operated satisfactorily after a prospectus is issued?
51.45 What happens to a right of preference in the event of
termination of a concession contract for unsatisfactory performance
or other breach?
51.46 May the Director grant a right of preference except in
accordance with this part?
51.47 How will I know if a preferred offeror exists?
51.48 What solicitation, selection and award procedures apply when
a preferred offeror exists?
51.49 What must a preferred offeror do before he or she may
exercise a right of preference?
51.50 What happens if the preferred offeror does not submit a
responsive proposal?
51.51 What is the process if the Director determines that the best
responsive proposal was not submitted by the preferred offeror?
51.52 What if the preferred offeror does not timely amend its
proposal to meet the terms and conditions of the best proposal or is
not a qualified person to carry out the terms of the amended
proposal?
51.53 What will the Director do if a selected preferred offeror
does not timely execute the new concession contract?
51.54 What happens to a possible right of preference if the
Director receives no responsive proposals?
51.55 How do I appeal a decision of the Director that a prior
concessioner is not a preferred offeror?
Subpart F--Leasehold Surrender Interest
51.56 What special terms must I know to understand leasehold
surrender interest?
51.57 How do I obtain a leasehold surrender interest?
51.58 If a concessioner does not comply with the requirements of
this part or the terms and conditions of a leasehold surrender
interest concession contract, what happens?
51.59 Why may the Director authorize the construction or
installation of a capital improvement?
51.60 What must a concessioner do before beginning to construct or
install a capital improvement in which the concessioner seeks a
leasehold surrender interest?
51.61 What must a concessioner do after substantial completion of
the capital improvement?
51.62 How will the Director determine the construction cost for
purposes of leasehold surrender interest value?
51.63 May the concessioner appeal the Director's determination of
construction cost?
51.64 What actions may or must the concessioner take with respect
to a leasehold surrender interest?
51.65 Will leasehold surrender interest be extinguished by
expiration or termination of a leasehold surrender interest
concession contract or may it be taken for public use?
51.66 How will a new concession contract awarded to a prior
concessioner treat a leasehold surrender interest obtained under a
prior concession contract?
51.67 How is a prior concessioner who is not awarded a new
concession contract paid for a leasehold surrender interest?
51.68 When a new concessioner pays a prior concessioner for a
leasehold surrender interest, what is the leasehold surrender
interest in the related capital improvements for purposes of a new
concession contract?
[[Page 35520]]
51.69 What is the process to determine the leasehold surrender
interest value when a new concessioner is to pay a prior
concessioner for a leasehold surrender interest?
51.70 May the concessioner gain additional leasehold surrender
interest by adding to a structure in which the concessioner has a
leasehold surrender interest?
51.71 May the concessioner gain additional leasehold surrender
interest by replacing a fixture in which the concessioner has a
leasehold surrender interest?
51.72 Will a concessioner who undertakes a major rehabilitation of
an existing structure in which the concessioner has a leasehold
surrender interest increase its leasehold surrender interest?
51.73 Under what conditions will the Director authorize a
concessioner to obtain a leasehold surrender interest in an existing
capital improvement in which no leasehold surrender interest exists?
51.74 Will a concessioner receive new or additional leasehold
surrender interest as a result of a rehabilitation that does not
qualify as a major rehabilitation?
51.75 Is a concessioner required to maintain capital improvements,
and if so, will the concessioner obtain a leasehold surrender
interest in such repair and maintenance?
Subpart G--Possessory Interest
51.76 If a prior concessioner is not awarded a new concession
contract, how will a prior concessioner that has a possessory
interest receive compensation for its possessory interest?
51.77 If a prior concessioner is awarded a new concession contract,
what happens to the concessioner's possessory interest?
51.78 What is the process to be followed if there is a dispute
between the prior concessioner and the Director as to the value of
possessory interest?
51.79 If a new concessioner is awarded the contract, what is the
relationship between leasehold surrender interest and possessory
interest?
51.80 What happens if there is a dispute between the new
concessioner and a prior concessioner as to the value of the
possessory interest?
Subpart H--Concession Contract Provisions
51.81 What is the term or length of a concession contract?
51.82 When may a concession contract be terminated by the Director?
51.83 May the Director split or combine concession contracts?
51.84 May the Director include in a concession contract or
otherwise grant a concessioner a preferential right to provide new
or additional visitor services?
51.85 Will a concession contract provide a concessioner an
exclusive right to provide visitor services?
51.86 Is there a special rule for transportation service contracts?
51.87 Where will the Director deposit franchise fees and how will
the Director use franchise fees?
51.88 Will franchise fees be subject to renegotiation?
51.89 May the Director waive payment of franchise fee or other
payments?
51.90 How will the Director establish franchise fees for multiple
outfitter and guide concession contracts in the same park area?
51.91 May the Director include ``special account'' provisions in
concession contracts?
51.92 [Reserved]
Subpart I--Assignment or Encumbrance of Concession Contracts
51.93 What special terms must I know to understand this Part?
51.94 What assignments require the approval of the Director?
51.95 What encumbrances require the approval of the Director?
51.96 Does the concessioner have an unconditional right to receive
the Director's approval for an assignment or encumbrance?
51.97 What happens if an assignment or encumbrance is completed
without the approval of the Director?
51.98 What happens if there is a default on an encumbrance approved
by the Director?
51.99 How does the concessioner get the Director's approval before
making an assignment or encumbrance?
51.100 What information will the Director require in the
application?
51.101 May the Director waive any of these documentation
requirements?
51.102 What are standard proformas?
51.103 If the concessioner submits a non-standard proforma, is the
Director less likely to approve the transaction?
51.104 If the transaction includes more than one concession
contract, how must required information be provided?
Process To Receive the Director's Approval of Assignments and
Encumbrances
51.105 In what circumstances will the Director not approve an
assignment or encumbrance?
51.106 What information will the Director consider when deciding to
approve a transaction?
51.107 Does the Director's approval of an assignment or encumbrance
include any representations of any nature?
51.108 May the Director amend or extend a concession contract for
the purpose of facilitating a transaction?
51.109 May the Director open to renegotiation or modify the terms
of a concession contract as a condition of the approval of a
transaction?
51.110 May the Director charge a fee for the review a proposed
transaction?
Subpart J--Information and Access to Information
51.111 What records must the concessioner keep and what access does
the Director have to records?
51.112 What access to concessioner records will the Comptroller
General have?
51.113 What information will the Director make publicly available
about the concessioner and the concession contract?
51.114 When will the Director make proposals and evaluation
documents publicly available?
Subpart K--The Effect of the 1998 Act's Repeal of the 1965 Act
51.115 Did the 1998 Act repeal the 1965 Act?
51.116 What is the effect of the 1998 Act's repeal of the 1965
Act's renewal preference?
51.117 What renewal preference exceptions are made for Glacier Bay
cruise ships?
Subpart L--Information Collection
51.118 Have information collection procedures been followed?
Authority: The Act of August 25, 1916, as amended and
supplemented, 16 U.S.C. 1 et seq., particularly, Title IV of the
National Parks Omnibus Management Act of 1998 (Pub. L. 105-391)
Subpart A--Authority and Purpose
Sec. 51.1 What does this part cover?
(a) This part covers the solicitation, award, and administration of
concession contracts. The Director solicits, awards and administers
concession contracts on behalf of the Secretary of the Interior under
the authority of the Act of August 25, 1916, as amended and
supplemented, 16 U.S.C. 1 et seq., and particularly, Title IV of the
National Parks Omnibus Management Act of 1998 (Pub. L. 105-391). The
purpose of concession contracts is to authorize concessioners to
provide visitor services in park areas. All concession contracts are to
be consistent with the requirements of this part.
(b) The Director may award concession contracts only under this
authority. The Director may not authorize the conduct of visitor
services by any means other than a concession contract except as
otherwise may be authorized by law. For example, the Director may issue
limited commercial use authorizations under section 418 of the 1998
Act. Or, the Director may enter into agreements with non-profit
organizations for the sale of interpretive materials and/or the conduct
of interpretive programs for a fee or charge to visitors. In addition,
the Director may, as part of an interpretive program agreement
otherwise authorized by law, authorize the non-profit organization to
provide other incidental visitor services
[[Page 35521]]
necessary and appropriate for the conduct of the interpretive program.
Sec. 51.2 What is the policy underlying concessions contracts?
It is the policy of the Congress and the Secretary of the Interior
that visitor services in park areas may be provided only under
carefully controlled safeguards against unregulated and indiscriminate
use so that visitation will not unduly impair park values and
resources. Development of visitor services in park areas will be
limited to locations that are consistent to the highest practicable
degree with the preservation and conservation of the resources and
values of the park area. It is also the policy of the Congress and the
Secretary of the Interior that development of visitor services in park
areas must be limited to those as are necessary and appropriate for
public use and enjoyment of the park area in which they are located.
Subpart B--General Definitions
Sec. 51.3 How are terms defined in this part?
To understand this part, you must refer to these definitions,
applicable in the singular or the plural, whenever these terms are used
in this part:
The 1965 Act means Public Law 89-249, commonly known as the
National Park Service Concessions Policy Act of 1965.
A 1965 Act concession contract is a concession contract or permit
entered into under the authority of the 1965 Act.
The 1998 Act means Title IV of Public Law 105-391.
The award of a concession contract is the establishment of a
legally binding concession contract. It occurs only when the Director
and a selected offeror both fully execute a concession contract.
A concession contract (or contract), unless otherwise indicated in
this part, means a binding written agreement between the Director and a
concessioner under which the concessioner is authorized and/or required
to provide certain visitor services within a park area under specified
terms and conditions. Concession contracts are not contracts within the
meaning of 41 U.S.C. 602 et seq. and are not service or procurement
contracts within the meaning of statutes, regulations or policies that
apply to federal service contracts or other types of federal
procurement actions.
A concessioner is an individual, corporation, or other legally
recognized form of business organization that holds a concession
contract.
Director means the Director of the National Park Service or an
authorized representative of the Director, except where a particular
official is specifically identified in this part.
A franchise fee is the consideration paid to the Director by a
concessioner for the privileges granted by a concession contract.
Offeror means an individual, corporation, or other legally
recognized form of business organization that submits a proposal for a
concession contract.
A park area means a unit of the national park system.
Possessory interest means a compensable interest in real property
improvements as defined by the 1965 Act obtained by a prior
concessioner under a possessory interest concession contract.
Possessory interest does not include any interest in personal property
even though a prior concession contract may have provided a compensable
interest in personal property described as a ``possessory interest.''
A possessory interest concession contract means a 1965 Act
concession contract that provided the prior concessioner a possessory
interest.
A preferred offeror is a prior concessioner that the Director has
determined is eligible to exercise a right of preference to the award
of a concession contract in accordance with this part if the preferred
offeror submits a responsive proposal under a prospectus.
A prior concession contract is the concession contract that is or
was in effect before the effective date of a new concession contract.
A prior concessioner is a concessioner under a prior concession
contract.
A qualified person is an individual, corporation or other legally
recognized form of business organization that the Director determines
is qualified to be a concessioner. To be a qualified person, an
individual, corporation or other legally recognized form of business
organization must have the experience and financial ability to
satisfactorily carry out the terms of a concession contract. This
experience and ability includes, but is not limited to, the ability to
protect and preserve the resources of the park area and the ability to
provide satisfactory visitor services at reasonable rates to the
public.
A right of preference is the right of a preferred offeror, if it
submits a responsive proposal, to match in accordance with the
requirements of this part the terms and conditions of a competing
responsive proposal that the Director has determined to be the best
proposal for a concession contract. A right of preference does not
provide a preferred offeror any rights of any nature to establish or
negotiate the terms and conditions of a concession contract to which a
right of preference may apply.
Visitor services means accommodations, facilities and services
necessary and appropriate for public use and enjoyment of a park area
provided to visitors to the area by a person (other than the Director)
for a fee or charge. The fee or charge paid by the visitor may be
direct or indirect as part of the provision of comprehensive visitor
services. Visitor services may include, but are not limited to,
lodging, food service, merchandising, tours, recreational activities,
guiding, transportation, and equipment rental. Visitor services may
include campgrounds not operated by the Director. Visitor services
include the sale of interpretive materials or the conduct of
interpretive programs for a fee or charge to visitors.
Subpart C--Solicitation, Selection and Award Procedures
Sec. 51.4 How will the Director invite the general public to apply for
the award of a concession contract?
The Director must award all concession contracts, except as
otherwise expressly provided in this part, through a public
solicitation process. The public solicitation process begins with the
issuance of a prospectus. The prospectus will describe the terms and
conditions of a concession contract to be awarded and will invite the
general public to submit proposals for the contract.
Sec. 51.5 What information will the prospectus include?
The prospectus must include the following information:
(a) The minimum requirements of the concession contract. The
minimum requirements of the concession contract, include, but are not
limited to the following:
(1) The minimum franchise fee or fees, and, other forms of minimum
consideration, if any, that the concessioner must pay;
(2) The minimum required visitor services that the concessioner
must provide and any other visitor services that the concessioner may
be authorized but not required to provide;
(3) The minimum capital investment that the concessioner must make;
(4) The minimum required measures that the concessioner must take
to ensure the protection, conservation, and preservation of the
resources of the park area. Such minimum requirements will include
specific actions and programs
[[Page 35522]]
for the protection and enhancement of the environment as appropriate in
furtherance of these purposes; and
(5) Any other minimum requirements that the new contract may
specify.
(b) The terms and conditions of a prior concession contract, if
any, relating to the visitor services to be provided, including all
fees and other forms of compensation provided to the Director under a
prior contract;
(c) A description of facilities and services, if any, that the
Director may provide to the concessioner under the terms of the
concession contract, including, but not limited to, public access,
utilities and buildings;
(d) An estimate of the amount of any compensation due a prior
concessioner from a new concessioner under the terms of a prior
concession contract;
(e) A statement identifying each principal selection factor for
proposals, including sub-factors, if any, and secondary factors, if
any, and the weight and relative importance of the principal and any
secondary factors in the selection decision;
(f) Any additional information available to the Director that the
Director determines is necessary to allow for the submission of
competitive proposals; and
(g) Identification of a preferred offeror for the concession
contract, if any, and, if a preferred offeror exists, a description of
a right of preference to the award of the concession contract.
Sec. 51.6 Will a concession contract be developed for a particular
potential offeror?
The terms and conditions of a concession contract must represent
the requirements of the Director and must not be developed to
accommodate the capabilities or limitations of any potential offeror.
Sec. 51.7 How will information be provided to a potential offeror
after the prospectus is issued?
Material information directly related to the prospectus and the
concession contract (except that which is otherwise publicly available)
that the Director provides to any potential offeror prior to the
submission of proposals must be made available to all persons who have
requested a copy of the prospectus.
Sec. 51.8 Where will the Director publish the notice of availability
of the prospectus?
The Director will publish a notice of the availability of the
prospectus at least once in the Commerce Business Daily or in a similar
publication if the Commerce Business Daily ceases to be published. The
Director may also publish notices, if determined appropriate by the
Director, in local or national newspapers or trade magazines.
Sec. 51.9 How do I get a copy of the prospectus?
The Director will make the prospectus available upon request to all
interested persons. The Director may charge a reasonable fee for a
prospectus, not to exceed printing and mailing costs.
Sec. 51.10 How long will I have to submit my proposal?
The Director will allow an appropriate period of time for
submission of proposals that is not less than sixty days unless the
Director determines that a shorter time period is appropriate in the
circumstances of a particular solicitation.
Sec. 51.11 May the Director amend, extend, or terminate a prospectus
or solicitation?
The Director may amend a prospectus and/or extend the submission
date prior to the date of submission of proposals. The Director may
terminate a solicitation at any time prior to award of the concession
contract.
Sec. 51.12 Do I have any rights if the Director amends, extends or
terminates a prospectus or solicitation?
No offeror or other person will obtain compensable or other legal
rights as a result of a canceled or resolicited solicitation for a
concession contract.
Sec. 51.13 Are there any other procedures that I must follow or that
apply to the solicitation or to the selection of the best proposal?
The Director may specify, in a prospectus, additional solicitation
and/or selection procedures consistent with the requirements of this
part in the interests of enhancing competition. Such additional
procedures may include, but are not limited to, issuance of a two-
phased prospectus--a qualifications phase and a proposal phase, and,
use of a lottery system to select proposals where two or more proposals
are deemed to be of equal merit. The Director will include simplified
solicitation and/or information requirements in a prospectus for a
concession contract that the Director considers is likely to be awarded
to a sole proprietorship.
Sec. 51.14 When will the Director determine if proposals are
responsive?
After the due date for submission of proposals as stated in a
prospectus, the Director may make a preliminary review of the proposals
submitted to determine which of them, if any, are responsive to the
terms of the prospectus. The Director will not further consider
proposals that the Director determines to be non-responsive.
Sec. 51.15 What is a ``responsive proposal''?
A ``responsive proposal'' means a timely submitted proposal in
which the offeror agrees to all of the minimum requirements of the
concession contract and the prospectus and provides all mandatory
information specified in the prospectus.
Sec. 51.16 What happens if no responsive proposals are submitted?
If no responsive proposals are submitted, the Director may cancel
the prospectus, establish new contract requirements and reissue a
modified prospectus, or, cancel the solicitation.
Sec. 51.17 May I clarify, amend or supplement my responsive proposal
after it is submitted?
The Director may request from any offeror who has submitted a
responsive proposal written clarification of its proposal. However, an
offeror may not substantively amend or supplement a responsive proposal
after the submission date unless the Director provides all offerors
that submitted responsive proposals a similar opportunity to amend or
supplement their proposals.
Sec. 51.18 How will the Director select an offeror for award of the
concession contract?
The Director, subject to applicable conditions of this part, will
select for award of the concession contract the offeror that the
Director determines submitted the best proposal pursuant to the
prospectus. The ``best proposal'' is the responsive proposal that the
Director, through the following procedures, determines will result in
the highest level of performance and benefit to the government,
including, but not limited to, protection and enhancement of the
resources of the park area, under the concession contract of all of the
responsive proposals submitted.
Sec. 51.19 How will the Director select the best proposal?
The Director will apply to responsive proposals the five principal
selection factors in Sec. 51.20, taking into account any subfactors and
secondary factors described in the prospectus, and select the best
proposal in the manner set forth in that section.
Sec. 51.20 What are the five principal selection factors?
The five principal selection factors are:
(a) The responsiveness of the proposal to the objective, as
described in the
[[Page 35523]]
prospectus, of protecting, conserving, and preserving resources of the
park area. A subfactor under this principal factor shall be how the
offeror proposes to conduct its concession operations in an
environmentally enhancing manner through, among other programs and
activities, energy conservation, waste reduction, and recycling;
(b) The responsiveness of the proposal to the objective, as
described in the prospectus, of providing necessary, appropriate and
quality visitor services at reasonable rates;
(c) The experience and related background of the offeror, including
the past performance and expertise of the offeror in providing the same
or similar visitor services as those to be provided under the
concession contract;
(d) The financial capability of the offeror to carry out its
proposal; and
(e) The amount of the proposed franchise fee and/or other forms of
financial consideration to the Director. However, consideration of
higher revenue to the United States will be subordinate to the
objectives of protecting, conserving, and preserving resources of the
park area and of providing necessary and appropriate visitor services
to the public at reasonable rates. The Director must establish the
minimum franchise fee stated in the prospectus in accordance with these
objectives. The Director may consider a proposed franchise fee higher
than the established minimum if the Director determines that the
proposed higher franchise fee is consistent with these objectives.
Sec. 51.21 How will the Director apply the five selection factors and
select the best proposal?
(a) Except as indicated in paragraph (b) of this section, the first
four principal selection factors will have equal weight and relative
importance in the selection. The Director will assess proposals under
these four principal selection factors as ``unacceptable,'' ``fair,''
``good,'' or ``excellent'' on the basis of a narrative explanation,
discussing subfactors when applicable. The Director will then determine
the best proposal taking into account the assessments under each of the
first four selection factors and the narrative explanation as to the
reasons for each assessment.
(b) If two or more proposals are assessed as substantially equal
with respect to qualifying as the best proposal after the Director
applies the first four principal selection factors, the Director will
select as the best proposal the proposal that the Director determines
credibly offers the most substantial, comprehensive and effective
program for environmental enhancement, unless the Director determines
that another substantially equal proposal provides, through an offer of
a higher than the minimum franchise fee, substantially greater benefits
for the preservation of the resources of the park area. In this case,
the Director will select as the best proposal that proposal that
provides the higher franchise fee and will dedicate the higher portion
of the franchise fee for expenditure only on park resource protection
programs.
(c) If the Director determines that none of the otherwise
substantially equal proposals credibly offers to provide a more
substantial, comprehensive and effective program for environmental
enhancement, the Director will evaluate the applicable proposals under
the fifth principal selection factor to determine the best proposal,
subject to the limitations stated in such factor.
Sec. 51.22 When will the Director apply secondary factors?
If the Director, even after applying the fifth principal selection
factor, assesses two or more proposals as substantially equal with
respect to qualifying as the best proposal, the Director will apply any
secondary selection factors described in the prospectus to select the
best proposal. The secondary factors may include, to the extent
otherwise permissible by law, the extent to which a proposal calls for
the employment of Indians (including Native Alaskans) and involvement
of businesses owned by Indians, Indian tribes, or Native Alaskans in
operations under the concession contract.
Sec. 51.23 How will the Director select the best proposal if two or
more proposals are assessed as substantially equal after the Director
has applied the principal and secondary factors?
(a) If, after the Director has applied the principal and any
secondary selection factors, the Director still assesses two or more
proposals as substantially equal with respect to qualifying as the best
proposal, and if the prospectus does not identify an additional
selection procedure, the Director will require the submission of ``best
and final'' proposals from the offerors that submitted the
substantially equal assessed proposals. Based on the ``best and final''
proposals, the Director will select for award of the concession
contract the offeror that submitted the best final proposal as
determined by the Director. In making this determination, the Director
will take into account the principal selection factors, including any
subfactors, any secondary factors, and the purposes, policies and
objectives of this part.
(b) If, after the Director has applied the principal and any
secondary selection factors, the Director still assesses two or more
proposals as substantially equal with respect to qualifying as the best
proposal, and if the prospectus does identify an additional selection
procedure, the Director will follow the specified procedure.
Sec. 51.24 What happens if a proposal is rated ``unacceptable'' under
any of the first four principal selection factors or if the offeror is
not a qualified person?
The Director must reject any proposal received, including a
proposal from a preferred offeror and regardless of the franchise fee
offered, if the Director determines the proposal to be ``unacceptable''
under any of the first four principal selection factors. The Director
must reject any proposal received, including a proposal from a
preferred offeror and regardless of the franchise fee offered, if the
Director determines that the offeror is not a qualified person as
defined in this part.
Sec. 51.25 Must the Director award the concession contract that is set
forth in the prospectus?
(a) Except for incorporating into the concession contract
appropriate elements of the best proposal, the Director must not award
a concession contract which materially amends or does not incorporate
the terms and conditions of the concession contract as set forth in the
prospectus, unless the Director determines that:
(1) The modification is necessary for the protection of visitors or
the resources and values of the park area; and
(2) The modification does not provide a financial benefit to the
selected offeror.
(b) If the Director wishes to make material modifications that are
of financial benefit to the offeror, the Director must cancel and
resolicit the concession contract under this part with the modified
terms and conditions.
Sec. 51.26 Does this part limit the authority of the Director?
Nothing in this part may be construed as limiting the authority of
the Director at any time to determine whether to solicit or award a
concession contract, to terminate a solicitation, or to terminate a
concession contract in accordance with its terms.
[[Page 35524]]
Sec. 51.27 When must the selected offeror execute the concession
contract?
The selected offeror must execute the concession contract promptly
after selection of the best proposal and within the time period
established by the Director. If the selected offeror fails to execute
the concession contract in this period, the Director may select another
responsive proposal or may cancel the selection and resolicit the
concession contract.
Sec. 51.28 After the selected offeror executes the concession
contract, when may the Director execute the concession contract?
Before awarding a concession contract with anticipated annual gross
receipts in excess of $5,000,000 or of more than 10 years in duration,
including, but not limited to, such contracts awarded non-competitively
by the Director pursuant to subpart D of this part, the Director must
submit the concession contract to the Committee on Resources of the
House of Representatives and the Committee on Energy and Natural
Resources of the Senate. The Director must not award any such
concession contract until sixty days after such submission. Award of
these contracts may not be made without the Director's written
approval. The Director may not delegate this approval except to a
Deputy Director or an Associate Director.
Subpart D--Non-Competitive Award of Concession Contracts
Sec. 51.29 May the Director extend an existing concession contract
without a public solicitation?
Notwithstanding the public solicitation requirements of this part,
the Director may award non-competitively an extension of an existing
concession contract to the existing concessioner for additional terms
not to exceed three years in the aggregate. The Director may award such
an extension only if the Director determines that the extension is
necessary to avoid interruption of visitor services. Before awarding
such a contract extension, the Director must take all reasonable and
appropriate steps to consider alternatives to avoid an interruption of
visitor services.
Sec. 51.30 May the Director award a temporary concession contract
without a public solicitation?
Notwithstanding the public solicitation requirements of this part,
the Director may award non-competitively a temporary concession
contract for terms not to exceed three years in the aggregate to any
qualified person if the Director determines that this award is
necessary to avoid interruption of visitor services. Before awarding a
temporary contract, the Director must take all reasonable and
appropriate steps to consider alternatives to avoid an interruption of
visitor services. The holder of a temporary concession contract will
not obtain the rights of a preferred offeror as described in this part
or otherwise obtain a possible right of preference to a concession
contract which replaces a temporary contract unless the Director
determines both that relevant circumstances legally require the
recognition of a preferred offeror under the terms of the 1998 Act,
and, that the holder of the temporary contract otherwise meets the
preferred offeror requirements of this part.
Sec. 51.31 Are there any other circumstances in which the Director may
award a concession contract without public solicitation?
Notwithstanding the public solicitation requirements of this part,
the Director may award a concession contract non-competitively to any
qualified person if the Director determines both that such an award is
otherwise consistent with the requirements of this part and that
extraordinary circumstances exist under which compelling and equitable
considerations require the award of the concession contract to a
particular qualified person in the public interest. The Director must
publish a notice of his intention to award a concession contract under
these circumstances and the reasons for the proposed award in the
Federal Register at least 30 days before the concession contract is
awarded. In addition, the Director also must notify the Committee on
Energy and Natural Resources of the Senate and the Committee on
Resources of the House of Representatives at least 30 days before the
contract is awarded. The Director must personally approve of any such
notifications or award.
Subpart E--Right of Preference
Sec. 51.32 Does the existence of a preferred offeror and a possible
right of preference limit the authority of the Director to establish
the terms of a concession contract?
The existence of a preferred offeror and a possible right of
preference does not limit the authority of the Director to establish,
in accordance with this part, the terms and conditions of a concession
contract, including but not limited to, terms and conditions that
modify the terms and conditions of a prior concession contract.
Sec. 51.33 What three conditions must be met before the Director
determines that a prior concessioner is a preferred offeror?
A prior concessioner is a preferred offeror if the Director
determines that the following three conditions are met:
(a) The applicable new concession contract provides only for the
continuation of the visitor services authorized or required under a
prior concession contract. The visitor services to be continued under
the new contract may be expanded or diminished in scope but may not
materially differ in nature and type from those authorized or required
under the prior concession contract;
(b) The applicable prior concession contract is a qualified
concession contract, determined under this subpart; and
(c) The applicable prior concessioner was a satisfactory
concessioner during the term of its prior concession contract,
determined under this subpart.
Sec. 51.34 How will the Director determine that a concession contract
is a qualified concession contract?
A prior concession contract is a qualified concession contract if
the Director determines either that:
(a) The new concession contract that is to replace the prior
concession contract is estimated to result in, as determined by the
Director, gross annual receipts of less than $500,000 in the first
calendar year of its term; or
(b) The prior concession contract was an outfitter and guide
concession contract and the new concession contract that is to replace
the prior contract is an outfitter and guide concession contract.
Sec. 51.35 How will the Director determine that a concession contract
is an ``outfitter and guide concession contract''?
The Director will determine that a concession contract is an
``outfitter and guide concession contract'' if the Director determines
both that:
(a) The concession contract solely authorizes or requires (except
for park area access purposes) the conduct of specialized outdoor
recreation guide services in the backcountry of a park area; and
(b) The conduct of operations under the concession contract
requires employment of specially trained and experienced guides to
accompany park visitors who otherwise may not have the skills and
equipment to engage in the activity and to provide a safe and enjoyable
experience for these visitors.
[[Page 35525]]
Sec. 51.36 What are some examples of outfitter and guide concession
contracts?
Examples of outfitter and guide concession contracts may include,
but are not limited to, concession contracts which solely authorize or
require the conduct of guided river running, hunting (where otherwise
lawful in a park area), fishing, horseback, camping, and mountaineering
activities in the backcountry of a park area.
Sec. 51.37 What facts and circumstances will the Director take into
account when determining if a concession contract is an outfitter and
guide concession contract?
In determining whether a concession contract is an outfitter and
guide contract, the Director will take into account the terms and
related facts and circumstances of the concession contract and the
actual operations conducted by the prior concessioner under a prior
contract. The Director will also take into account the physical and
geographic features of the applicable park area. If a prior
concessioner provided visitor services beyond the scope of the
outfitter and guide services authorized or required by its prior
concession contract, the Director will determine that the
concessioner's prior concession contract is not an outfitter and guide
concession contract. The only exception to this determination is if the
Director concludes that the additional visitor services were negligible
in nature.
Sec. 51.38 What are some circumstances that will indicate that
outfitter and guide operations are conducted in the backcountry?
Circumstances which indicate that outfitter and guide operations
are conducted in the backcountry of a park area typically include, but
are not limited to, the fact that:
(a) The operations occur in areas remote from roads and developed
areas;
(b) The operations are conducted within a designated natural area
of a park area;
(c) The operations occur in areas which are inaccessible by
motorized vehicle;
(d) The operations occur in areas where search and rescue support
is not readily available; or
(e) All or a substantial portion of the operations occur in
designated or proposed wilderness areas.
Sec. 51.39 If the concession contract grants a compensable interest in
real property improvements, will the Director find that the concession
contract is an outfitter and guide concession contract?
The Director will not find that a concession contract is an
outfitter and guide contract if the contract grants any compensable
interest in real property improvements on lands owned by the United
States within a park area.
Sec. 51.40 Are there exceptions to this compensable interest
prohibition?
Two exceptions to this compensable interest prohibition exist:
(a) The prohibition will not apply to real property improvements
lawfully constructed by a concessioner with the written approval of the
Director in accordance with the express terms of a 1965 Act concession
contract; and
(b) The prohibition will not apply to real property improvements
constructed and owned in fee simple by a concessioner or owned in fee
simple by a concessioner's predecessor before the land on which they
were constructed was included within the boundaries of the applicable
park area.
Sec. 51.41 Who will make the determination that a concession contract
is an outfitter and guide contract?
Only the Director personally, or a Deputy or Associate Director
authorized by the Director, will make the determination that a
concession contract is or is not an outfitter and guide contract as
described in this section.
Sec. 51.42 How will the Director determine if a prior concessioner was
satisfactory for purposes of this part?
(a) To be a satisfactory concessioner for the purposes of this
part, the Director must determine that a prior concessioner operated
satisfactorily on an overall basis during the term of a prior
concession contract, including extensions of the contract. The Director
will base this determination on annual evaluations made by the Director
during the term of the applicable prior concession contract and other
relevant facts and circumstances,
(b) Among other considerations, the Director will determine that a
concessioner did not operate satisfactorily during the term of the
prior contract if an annual evaluation of a prior concessioner was less
than satisfactory for any year of operation under a prior contract,
and, any additional annual evaluation was also less than satisfactory.
In addition, the Director will determine that a concessioner did not
operate satisfactorily during the term of the prior contract if the
prior concessioner's annual evaluation in either of the last two years
of the term of the prior contract was less than satisfactory.
Sec. 51.43 Will a prior concessioner that has operated for less than
the entire term of a concession contract be considered a satisfactory
operator?
The Director will determine that a prior concessioner has not
operated satisfactorily on an overall basis during the term of a prior
contract if that concessioner has or will have operated under a prior
concession contract for less than two years under a concession contract
with a term of ten years or less than four years under a concession
contract with a term of more than ten years. For purposes of this
section, a new concessioner's first day of operation under an assigned
concession contract will be the day the Director approves the
assignment pursuant to this part. If the Director determines that the
assignment was compelled by circumstances beyond the control of the
assigning concessioner, the Director may make an exception to this
requirement.
Sec. 51.44 May the Director determine that a prior concessioner has
not operated satisfactorily after a prospectus is issued?
If circumstances warrant, the Director may determine that a prior
concessioner has not operated satisfactorily on an overall basis during
the term of a prior contract after a prospectus for a new contract has
been issued. In this event, the prospectus must be amended or canceled
and reissued without recognition of a preferred offeror or a possible
right of preference to the concession contract.
Sec. 51.45 What happens to a right of preference in the event of
termination of a concession contract for unsatisfactory performance or
other breach?
Nothing in this part will limit the right of the Director to
terminate a concession contract pursuant to its terms at any time for
unsatisfactory performance or otherwise. If a concession contract is
terminated for unsatisfactory performance or other breach, Director
will not determine the terminated concessioner, even if otherwise
qualified, to be a preferred offeror. The fact that the Director may
not have terminated a prior concession contract for unsatisfactory
performance or other breach will not limit the authority of the
Director to determine that a prior concessioner did not operate
satisfactorily during the term of a prior concession contract.
Sec. 51.46 May the Director grant a right of preference except in
accordance with this part?
The Director may not grant a concessioner or any other person a
right of preference or any other form of
[[Page 35526]]
entitlement of any nature to a new concession contract, except in
accordance with this part. The right of preference described by this
part is a statutory right. The Director will not include in concession
contracts as a matter of contract right a preference or other form of
entitlement of any nature to a new concession contract.
Sec. 51.47 How will I know if a preferred offeror exists?
If the Director has determined that a preferred offeror exists
under the requirements of this subpart, the Director will identify the
preferred offeror in the applicable prospectus and describe the
preferred offeror's possible right of preference.
Sec. 51.48 What solicitation, selection and award procedures apply
when a preferred offeror exists?
The solicitation, selection and award procedures described in this
part will apply to the solicitation, selection and award of proposals
for concession contracts for which a preferred offeror exists, except
as modified by this subpart.
Sec. 51.49 What must a preferred offeror do before he or she may
exercise a right of preference?
A preferred offeror must submit a responsive proposal pursuant to
the terms of an applicable prospectus if the preferred offeror wishes
to exercise a right of preference.
Sec. 51.50 What happens if the preferred offeror does not submit a
responsive proposal?
If the preferred offeror fails to submit a responsive proposal, the
preferred offeror may not exercise a right of preference. The
concession contract will be awarded to the offeror submitting the best
responsive proposal.
Sec. 51.51 What is the process if the Director determines that the
best responsive proposal was not submitted by the preferred offeror?
If the Director determines that a proposal other than the proposal
of a preferred offeror is the best proposal submitted, and if a
preferred offeror submitted a responsive proposal, then the Director
must permit the preferred offeror to amend its proposal. The amended
proposal must meet the better terms and conditions of the best proposal
as determined by the Director. If the preferred offeror duly amends its
proposal within the time period allowed by the Director, and the
Director determines that the amended proposal is at least equal to the
best proposal, and the Director determines that the preferred offeror
is a qualified person as defined in this part with respect to carrying
out the terms and conditions of its amended proposal, then the Director
must select the preferred offeror for award of the contract upon the
amended terms and conditions.
Sec. 51.52 What if the preferred offeror does not timely amend its
proposal to meet the terms and conditions of the best proposal or is
not a qualified person to carry out the terms of the amended proposal?
If a preferred offeror does not amend its proposal to meet the
terms and conditions of the best proposal within the time period
allowed by the Director, the Director will award the contract to the
offeror submitting the best proposal. Additionally, if the Director
finds that the preferred offeror is not a qualified person with respect
to carrying out the terms and conditions of its amended proposal, the
Director will award the contract to the offeror submitting the best
proposal.
Sec. 51.53 What will the Director do if a selected preferred offeror
does not timely execute the new concession contract?
If a selected preferred offeror fails to execute the concession
contract in the time period specified by the Director, the Director
either will select for award of the concession contract the offeror
that submitted the best proposal, or will resolicit the concession
contract without recognition of a preferred offeror or a possible right
of preference.
Sec. 51.54 What happens to a possible right of preference if the
Director receives no responsive proposals?
If the Director receives no responsive proposals to a prospectus
for a concession contract for which a preferred offeror exists, the
Director may resolicit the concession contract. No preferred offeror
will be recognized and no possible right of preference will apply to
the resolicited concession contract unless the contract is resolicited
upon terms and conditions that are materially more favorable to
offerors than those contained in the original contract.
Sec. 51.55 How do I appeal a decision of the Director that a prior
concessioner is not a preferred offeror?
(a) If the Director determines that a prior concessioner is not a
preferred offeror, the prior concessioner may appeal this determination
to the Director. This appeal must be received by the Director in
writing no later than thirty days after the date of the determination.
Where applicable, the Director will give notice of this appeal to all
potential offerors that requested a prospectus. A prior concessioner
that made an appeal must submit a responsive proposal in response to a
prospectus if its appeal is pending as of the date of submission for
proposals as set forth in the prospectus. If the prior concessioner
fails to submit a timely responsive proposal, the Director must
consider the appeal moot as no right of preference would apply to the
concession contract under this part.
(b) The Director must consider this appeal personally or must
authorize a Deputy or Associate Director to consider the appeal.
However, the deciding official considering the appeal may not be the
official who made the disputed determination. The deciding official
must prepare a written decision on the appeal, taking into account the
content of the appeal, other written information available, and the
requirements of this part. The written decision on the appeal must be
issued before the Director selects the best proposal submitted under
the prospectus. If the appeal results in a prior concessioner being
determined as a preferred offeror, then the prior concessioner will
have a possible right of preference to the contract as described in and
subject to the conditions of this part including, but not limited to,
the obligation to submit a responsive proposal.
(c) A prior concessioner will not have exhausted its administrative
remedies with respect to the failure of the Director to determine it to
be a preferred offeror until such time as the Director issues a written
decision in response to an appeal submitted pursuant to this section.
Subpart F--Leasehold Surrender Interest
Sec. 51.56 What special terms must I know to understand leasehold
surrender interest?
To understand leasehold surrender interest, you must refer to these
definitions, applicable in the singular or the plural, whenever these
terms are used in this part:
A capital improvement is a structure, fixture, or non-removable
equipment provided by a concessioner under the terms of a concession
contract that is permanently affixed to the land so as to be part of
the realty. Except as otherwise may be specified in this part, a
capital improvement does not include any interest in land.
Additionally, except as otherwise may be specified in this part, a
capital improvement does not include any interest in personal property
of any kind including, but not limited to, vehicles, boats, trailers,
or other objects not permanently affixed to the real estate regardless
of the size of such objects. Concession contracts may
[[Page 35527]]
further describe, consistent with the limitations of this part and the
1998 Act, the nature and type of specific capital improvements in which
a concessioner may obtain a leasehold surrender interest.
Construction cost of a capital improvement means the total of the
eligible direct and indirect costs necessary for constructing or
installing the capital improvement as determined by the Director, other
than ineligible costs, that are included in the concessioner's basis in
the capital improvement for federal income tax purposes.
Consumer Price Index means the national ``Consumer Price Index--All
Urban Consumers'' published by the Department of Labor. If this index
ceases to be published, the Director will designate another regularly
published cost-of-living index approximating the national Consumer
Price Index.
Depreciation means the loss of value in a capital improvement from
physical deterioration and/or functional obsolescence as evidenced by
the condition and prospective serviceability of the capital improvement
in comparison with a new unit of like kind.
Eligible direct costs means the sum of all costs (in amounts no
higher than those prevailing in the locality of the project), of the
construction contractor that both are necessary for the construction or
installation of the capital improvement as determined by the Director
and are typically elements of a construction contract or fixture
installation contract. Eligible direct costs may include, but are not
limited to, the costs of material, labor, contractor's (and
subcontractors') profit and overhead, and the construction contractor's
job supervision. Eligible direct costs also may include performance
bonds and insurance for worker's compensation, fire, liability, and
unemployment. Additionally, eligible direct costs may include the costs
of building permits, equipment used in construction, security during
construction, contractor's shack and temporary fencing, material
storage facilities, installing power lines and utilities.
Eligible indirect costs means the sum of all other costs (in
amounts no higher than those prevailing in locality of the project)
necessary for the construction or installation of a capital improvement
as determined by the Director. Eligible indirect costs may include, but
are not limited to, design services (schematic design, design
development, construction documents and cost estimating) and
environmental and other studies if required by the Director. Eligible
indirect costs may also include the cost of carrying the investment in
the capital improvement until its substantial completion (as determined
by the Director); the cost of insuring the capital improvement until
the date of its substantial completion (as determined by the Director);
and direct, on-site construction inspection expenses incurred by the
concessioner.
Fixtures and non-removable equipment means manufactured items of
personal property of independent form and utility necessary for the
basic functioning of a capital improvement that are permanently
installed in or on land or a capital improvement so as to become part
of the real estate (e.g., heating, air conditioning and ventilation
equipment, tubs, street lamps, fire protection systems, etc.). Fixtures
and non-removable equipment do not include equipment that can be
disconnected and relocated without substantial damage to a structure
(e.g. computer printers, portable heating units, table lamps,
chandeliers, televisions, trade fixtures, trade telephones, vacuum
cleaners, etc.). Fixtures and non-removable equipment do not include
building materials (e.g., wallboard, flooring, concrete, cinder blocks,
steel beams, studs, window frames, windows, rafters, roofing, framing,
siding, lumber, insulation, foundations, electric wiring, water and gas
piping, wallpaper, paint, etc.). Except as otherwise indicated, the
term ``fixture'' as used elsewhere in this part includes the term
``non-removable equipment.''
Ineligible costs are direct and indirect costs that may be
associated with the construction or installation of a capital
improvement but are not approved by the Director. Ineligible costs also
include all administrative, overhead and other costs of the
concessioner (other than direct, on-site construction inspection
expenses). Ineligible costs further include any otherwise eligible
costs that are not included in the concessioner's basis in the capital
improvements for federal income tax purposes.
Leasehold surrender interest solely means a right to payment in
accordance with this part for related capital improvements that a
concessioner makes within a park area on lands owned by the United
States if the related capital improvements are made both pursuant to
this part and under the terms and conditions of an applicable
concession contract. The existence of a leasehold surrender interest
does not give the concessioner, or any other person, any right to
conduct business in a park area, to occupy or utilize the related
capital improvements, or to prevent the Director or another person from
utilizing the related capital improvements. The existence of a
leasehold surrender interest does not include any interest in the land
on which the related capital improvements are located.
Leasehold surrender interest concession contract means a concession
contract that provides for leasehold surrender interest in capital
improvements.
Leasehold surrender interest value means the amount of compensation
a concessioner is entitled to be paid for a leasehold surrender
interest in accordance with this part. Unless otherwise provided by the
terms of a leasehold surrender interest concession contract, leasehold
surrender interest value generally is an amount equal to:
(1) The approved initial construction cost of the related capital
improvement,
(2) Adjusted by (increased or decreased) the same percentage
increase or decrease as the percentage increase or decrease in the
Consumer Price Index from the date the Director approves the completion
of the construction or installation of the related capital improvement
to the date of payment of the leasehold surrender interest value,
(3) Less depreciation of the related capital improvement on the
basis of its condition as of the date of termination or expiration of
the applicable leasehold surrender interest concession contract.
Major rehabilitation means a planned, comprehensive rehabilitation
of an existing structure:
(1) The Director determines is completed within eighteen months
from start of the rehabilitation work (unless a longer period of time
is approved by the Director in special circumstances); and
(2) The construction cost of which exceeds the pre-rehabilitation
value of the structure. Major rehabilitation does not include expenses
resulting from routine maintenance and repair.
Pre-rehabilitation value of a structure means the replacement cost
of the structure less depreciation.
Real property improvements means real property other than land,
including, but not limited to, capital improvements.
Related capital improvement or related fixture means a capital
improvement in which a concessioner has or seeks to obtain a leasehold
surrender interest.
Replacement cost means the estimated cost to reconstruct, at
current prices, an existing structure with utility equivalent to the
existing structure,
[[Page 35528]]
using modern materials and current standards, design and layout.
Structure means a building, dock, or similar edifice, excluding
fixtures, permanently affixed to the land so as to be part of the real
estate. A structure may include both constructed infrastructure (e.g.,
water, power and sewer lines) and constructed site improvements (e.g.,
paved roads, retaining walls, sidewalks, paved driveways, paved parking
areas) that are permanently affixed to the land so as to be part of the
real estate and that are in direct support of the use of a building,
dock, or similar edifice. Landscaping and plantings are not a structure
or part of a structure. Interior furnishings not attached to the
structure so as to be part of the real estate are not part of the
structure.
Sec. 51.57 How do I obtain a leasehold surrender interest?
Leasehold surrender interest concession contracts will contain
appropriate leasehold surrender interest terms and conditions
consistent with this part. A concessioner may obtain a leasehold
surrender interest in capital improvements only if the concessioner
complies both with the requirements of this part and the terms and
conditions of an applicable leasehold surrender interest concession
contract.
Sec. 51.58 If a concessioner does not comply with the requirements of
this part or the terms and conditions of a leasehold surrender interest
concession contract, what happens?
If a concessioner does not comply with the leasehold surrender
interest requirements of this part or the applicable terms and
conditions of a leasehold surrender interest concession contract, the
concessioner will not obtain a leasehold surrender interest or any
compensable interest in capital improvements. Any capital improvements
so constructed or installed by the concessioner will be the property of
the United States without a right of compensation in any person.
Sec. 51.59 Why may the Director authorize the construction or
installation of a capital improvement?
The Director may only authorize or require a concessioner to
construct capital improvements on park lands for the conduct by the
concessioner of necessary and appropriate visitor services as
determined by the Director, including, the construction of capital
improvements necessary for support of the concessioner's visitor
services.
Sec. 51.60 What must a concessioner do before beginning to construct
or install a capital improvement in which the concessioner seeks a
leasehold surrender interest?
Before beginning to construct or to install any capital improvement
in which the concessioner seeks to obtain a leasehold surrender
interest, the concessioner must obtain written approval from the
Director in accordance with the terms of its leasehold surrender
interest concession contract. The request for approval must include
appropriate plans and specifications for the capital improvement and
any other information that the Director may specify. The request must
also include an estimate of the total construction cost of the capital
improvement. The estimate of the total construction cost must specify
all elements of the cost in such detail as is necessary to permit the
Director to determine that they are elements of construction cost as
defined in this part. Among other matters, the Director must not
approve the construction or installation of a capital improvement to
the extent that the Director considers that the estimate of total
construction cost is unreasonable or if the Director finds that the
estimate of total construction cost contains ineligible costs. The
requirements of this section also apply to any change orders to a
capital improvement project previously approved by the Director and to
any proposed addition to the capital improvement made after completion
of its initial construction.
Sec. 51.61 What must a concessioner do after substantial completion of
the capital improvement?
Upon substantial completion of the construction or installation of
a capital improvement, or an addition to an existing capital
improvement, in which the concessioner seeks a leasehold surrender
interest, the concessioner must provide the Director a detailed
financial report. The detailed financial report must be supported by
actual invoices of the capital improvement's construction cost together
with, if requested by the Director, a written certification from a
certified public accountant. The financial report must document and any
requested certification must state:
(a) That all the elements of the construction cost were incurred by
the concessioner;
(b) That all such elements are eligible under the definition of
construction cost as defined in Sec. 51.56; and
(c) That all such elements are included in the concessioner's basis
in the capital improvement for purposes of its federal income tax
returns.
Sec. 51.62 How will the Director determine the construction cost for
purposes of leasehold surrender interest value?
After receiving the detailed financial report (and certification,
if requested), from the concessioner, the Director will review the
report, certification and other information as appropriate. The
Director will then determine in writing the construction cost that is
to be recognized as the construction cost of the capital improvement
for purposes of leasehold surrender interest value, and where
applicable, identify any ineligible costs. If the Director's
determination differs from the concessioner's report, the Director will
state the reasons for the differences.
Sec. 51.63 May the concessioner appeal the Director's determination of
construction cost?
If the concessioner disagrees with the Director's determination of
construction cost, the concessioner may appeal the determination to an
official designated by the Director. The appeal must be in writing and
made within thirty days of receipt of the initial determination. The
designated official will review the concessioner's written appeal and
the record of the matter and make a final determination as to the
proper construction cost in accordance with this part. Such
determination will be the final administrative determination of the
construction cost of capital improvements for purposes of this part or
otherwise. If no timely appeal is made, the Director's initial
determination will be the final determination of the construction cost
of a capital improvement. The Director may at any time review a
construction cost determination if the Director has reason to believe
that it was based on false, misleading or incomplete information.
Sec. 51.64 What actions may or must the concessioner take with respect
to a leasehold surrender interest?
The concessioner:
(a) May encumber a leasehold surrender interest in accordance with
this part, but only for the purposes specified in this part;
(b) Where applicable, must transfer or relinquish in accordance
with this part its leasehold surrender interest in connection with any
assignment, termination or expiration of the concession contract; and
(c) May waive, relinquish or agree to an alternative value for a
leasehold surrender interest.
[[Page 35529]]
Sec. 51.65 Will leasehold surrender interest be extinguished by
expiration or termination of a leasehold surrender interest concession
contract or may it be taken for public use?
A leasehold surrender interest may not be extinguished by the
expiration or termination of a concession contract and a leasehold
surrender interest may not be taken for public use except on payment of
just compensation as described in this part or in an applicable
leasehold surrender interest concession contract. Payment of leasehold
surrender interest value pursuant to this part or the terms of an
applicable leasehold surrender interest concession contract will
constitute the payment of just compensation for a leasehold surrender
interest within the meaning of this part and for all other purposes.
Sec. 51.66 How will a new concession contract awarded to a prior
concessioner treat a leasehold surrender interest obtained under a
prior concession contract?
When a prior concessioner under a leasehold surrender interest
concession contract seeks and is awarded a new concession contract by
the Director, and the new concession contract continues a leasehold
surrender interest in related capital improvements, then the
concessioner's leasehold surrender interest value (established as of
the date of expiration or termination of its prior concession contract)
in the related capital improvements will be continued as the initial
value (instead of initial construction cost) of the concessioner's
leasehold surrender interest under the terms of the new concession
contract. No compensation will be due the concessioner for its
leasehold surrender interest or otherwise in these circumstances except
as provided by the new concession contract.
Sec. 51.67 How is a prior concessioner who is not awarded a new
concession contract paid for a leasehold surrender interest?
When a prior concessioner does not seek or is not awarded a new
concession contract after expiration or termination of a leasehold
surrender interest concession contract, the prior concessioner will be
entitled to be paid its leasehold surrender interest value as defined
in this part or in an applicable concession contract. The prior
concessioner will not be required to transfer or otherwise relinquish
its leasehold surrender interest until such time as the prior
concessioner is paid the leasehold surrender interest value. The date
for payment of the leasehold surrender interest value will be no later
than twelve months after the date of expiration or termination of the
leasehold surrender contract if the payment is to be made by a new
concessioner and no later than twenty-four months after the date of
expiration or termination if the payment is to be made by the Director.
In such circumstances, the depreciation of the related capital
improvements will be established as of the date of the expiration or
termination of the concession contract for leasehold surrender interest
value purposes. However, the Consumer Price Index adjustment to the
leasehold surrender interest will continue until the date of payment of
the leasehold surrender interest value.
Sec. 51.68 When a new concessioner pays a prior concessioner for a
leasehold surrender interest, what is the leasehold surrender interest
in the related capital improvements for purposes of a new concession
contract?
A new concessioner that pays a prior concessioner for a leasehold
surrender interest will have a leasehold surrender interest in the
related capital improvements on a unit by unit basis under the terms of
a new leasehold surrender interest contract. Instead of initial
construction cost, the initial value of such leasehold surrender
interest will be the leasehold surrender interest value that the new
concessioner was required to pay the prior concessioner.
Sec. 51.69 What is the process to determine the leasehold surrender
interest value when a new concessioner is to pay a prior concessioner
for a leasehold surrender interest?
Leasehold surrender interest concession contracts must contain
provisions that describe the process by which a prior concessioner and
a new concessioner resolve a dispute over the prior concessioner's
leasehold surrender interest value and/or provisions that describe a
process by which the prior concessioner and the Director determine the
prior concessioner's leasehold surrender interest value. For purposes
of this part, the Director's prior determinations of construction cost
in accordance with this part are final and not subject to arbitration.
The deduction for depreciation of the related capital improvements will
be subject to arbitration. The arbitration process will be similar to
the appraiser panel procedure described in this part for resolving a
dispute between the Director and a concessioner as to the valuation of
possessory interest. Except for values established as a result of an
appraiser panel process, a new concessioner must not agree with a prior
concessioner as to the prior concessioner's leasehold surrender
interest value in the aggregate or on a unit by unit basis without the
prior written approval of the Director. The Director's approval ensures
that the leasehold surrender interest value is consistent with the
terms and conditions of the prior concession contract. A new
concessioner must permit the Director to assist it in the resolution of
a dispute over a prior concessioner's leasehold surrender interest
value to the extent requested by the Director.
Sec. 51.70 May the concessioner gain additional leasehold surrender
interest by adding to a structure in which the concessioner has a
leasehold surrender interest?
A concessioner that adds, with the approval of the Director, a new
structure (e.g., a new wing to an existing building or an extension of
an existing road or sidewalk, etc.) to an existing structure in which
the concessioner has a leasehold surrender interest will increase its
leasehold surrender interest in the related structure, effective as of
the date of completion of the new structure, by the construction cost
of the new structure. The Consumer Price Index adjustment for leasehold
surrender interest value purposes will apply to the construction cost
of the addition as of the completion of the addition as determined by
the Director. Approvals for additions to structures are subject to the
same requirements and conditions applicable to new construction as
described in this part. If the advance approval required by this
section is not obtained by the concessioner, no increase in a
concessioner's leasehold surrender interest will be recognized.
Sec. 51.71 May the concessioner gain additional leasehold surrender
interest by replacing a fixture in which the concessioner has a
leasehold surrender interest?
A concessioner that replaces an existing fixture in which the
concessioner has a leasehold surrender interest with a like kind
fixture will not increase its leasehold surrender interest as a result
of the replacement. If the replacement fixture is not of like kind but
is a substantial upgrade of the replaced fixture with respect to
utility and function, and, if the construction cost of this replacement
fixture exceeds the initial construction cost of the fixture to be
replaced, all as determined by the Director, an increase to the
concessioner's leasehold surrender interest will result. This increase
will be the amount of the difference between the initial construction
cost of the replaced fixture as determined by the Director and the
construction cost of the
[[Page 35530]]
upgraded replacement fixture as determined by the Director. Approvals
for replacement of fixtures are subject to the same requirements and
conditions applicable to new construction or installation of a fixture
as described in this part. In addition, where applicable, a
concessioner must document to the satisfaction of the Director that a
replacement fixture is upgraded within the meaning of this section and
the initial constriction cost of the fixture to be replaced and the
construction cost of the upgraded fixture. If the advance approval for
a fixture replacement required by this section is not obtained by the
concessioner, no increase in a concessioner's leasehold surrender
interest will be recognized.
Sec. 51.72 Will a concessioner who undertakes a major rehabilitation
of an existing structure in which the concessioner has a leasehold
surrender interest increase its leasehold surrender interest?
A concessioner who undertakes with the prior written approval of
the Director a major rehabilitation of an existing structure in which
the concessioner has a leasehold surrender interest will obtain
additional leasehold surrender interest in the structure. This
additional leasehold surrender interest will be established by adding
the construction cost of the major rehabilitation as determined by the
Director to the initial construction cost of the related structure,
effective as of the date of completion of the major rehabilitation.
Approval for a proposed major rehabilitation is subject to the same
requirements and conditions as for new construction or installation of
capital improvements as described in this part.
Sec. 51.73 Under what conditions will the Director authorize a
concessioner to obtain a leasehold surrender interest in an existing
capital improvement in which no leasehold surrender interest exists?
The Director may not authorize a concessioner to obtain a leasehold
surrender interest in existing fixtures in which there is no leasehold
surrender interest (e.g., fixtures attached to an existing government
building assigned by the Director to the concessioner). The Director
may not authorize a concessioner to obtain a leasehold surrender
interest in an existing structure in which there is no leasehold
surrender interest, unless the concessioner undertakes a major
rehabilitation of the structure approved in advance by the Director. If
such an approved major rehabilitation is completed, the concessioner
will have a leasehold surrender interest in the related structure. The
initial construction cost of this leasehold surrender interest will be
the construction cost of the major rehabilitation as determined by the
Director. Depreciation for purposes of leasehold surrender interest
value will apply to the entirety of the related structure.
Sec. 51.74 Will a concessioner receive new or additional leasehold
surrender interest as a result of a rehabilitation that does not
qualify as a major rehabilitation?
Rehabilitation projects that do not qualify as major
rehabilitations are considered as repair and maintenance of existing
structures for which no new or additional leasehold surrender interest
may be obtained.
Sec. 51.75 Is a concessioner required to maintain capital
improvements, and if so, will the concessioner obtain a leasehold
surrender interest in such repair and maintenance?
A concession contract must require the concessioner to maintain in
good condition through a comprehensive repair and maintenance program
all of the concessioner's personal property used in the performance of
the concession contract and all land, real property improvements,
including capital improvements, and government personal property
assigned to the concessioner by a concession contract. A concessioner
will not obtain initial or additional leasehold surrender interest as a
result of repair and maintenance. Concession contracts may contain
provisions that require specified minimum levels of expenditures for
repair and maintenance of personal property and real property
improvements utilized by a concessioner. Concession contracts may also
contain provisions that require establishment of repair and maintenance
reserves by a concessioner dedicated to the repair and maintenance of
personal property and real property improvements.
Subpart G--Possessory Interest
Sec. 51.76 If a prior concessioner is not awarded a new concession
contract, how will a prior concessioner that has a possessory interest
receive compensation for its possessory interest?
A prior concessioner that has possessory interest in real property
improvements pursuant to the terms of a 1965 Act concession contract,
will, if the prior concessioner does not seek or is not awarded a new
concession contract upon termination or expiration of its possessory
interest concession contract, be entitled to receive compensation for
its possessory interest in the amount and manner as described by the
possessory interest contract and be entitled to receive all other
compensation that the possessory interest contract may provide.
Sec. 51.77 If a prior concessioner is awarded a new concession
contract, what happens to the concessioner's possessory interest?
In the event a prior concessioner seeks and is awarded a new
concession contract replacing a possessory interest concession
contract, the prior concessioner will obtain a leasehold surrender
interest in its existing possessory interest real property improvements
under the terms of the new concession contract. This prior concessioner
will carry over as the initial value of such leasehold surrender
interest (instead of initial construction cost) an amount equal to the
value of its possessory interest in real property improvements as of
the expiration or other termination of its possessory interest contract
as determined by the Director on a unit by unit basis. This leasehold
surrender interest will apply to the concessioner's possessory interest
real property improvements even if the real property improvements are
not capital improvements as defined in this part. In the event that a
prior concessioner had a possessory interest in only a portion of a
related structure, depreciation of the related structure for purposes
of leasehold surrender interest value will apply only to the portion of
the structure to which the possessory interest applied.
Sec. 51.78 What is the process to be followed if there is a dispute
between the prior concessioner and the Director as to the value of
possessory interest?
Unless other procedures are agreed to by the prior concessioner and
the Director, in the event that a prior concessioner under a possessory
interest concession contract is awarded a new concession contract and
there is a dispute between the prior concessioner and the Director as
to the value of such possessory interest in the aggregate or on a unit
by unit basis, a panel of three licensed appraisers will establish the
value or values. One of the appraisers will be selected by the
concessioner, one of the appraisers will be selected by the Director,
and the third appraiser will be selected by the initial two appraisers.
The expenses of the third appraiser and other associated common costs
of the proceeding will be borne equally by the concessioner and the
Director. The panel may request presentations by the concessioner and
the Director as to their positions on possessory interest value. The
panel must conduct these
[[Page 35531]]
presentations informally without adjudicative procedures. The
determination of values made by the panel will be binding on the
concessioner and the Director. Judicial review of the panel's decision
may be pursued by the concessioner or the Director only in the event of
allegations of fraud, misconduct or misrepresentation.
Sec. 51.79 If a new concessioner is awarded the contract, what is the
relationship between leasehold surrender interest and possessory
interest?
If a new concessioner is awarded a leasehold surrender interest
concession contract and is required to pay a prior concessioner for
possessory interest in real property improvements, then the new
concessioner will have a leasehold surrender interest in the real
property improvements under the terms of its new concession contract.
The initial value of the leasehold surrender interest (instead of
initial construction cost) will be an amount equal to the lower of the
value of the possessory interest as of the termination or expiration of
the possessory interest concession contract or the amount of money the
new concessioner in fact paid the prior concessioner for its possessory
interest in real property improvements. The Director will allocate this
initial leasehold surrender interest value on a unit by unit basis for
purposes of the new contract. This leasehold surrender interest will
apply even if the related possessory interest real property
improvements are not capital improvements as defined in this part. In
the event the a new concessioner obtains a leasehold surrender interest
in only a portion of a related structure as a result of the acquisition
of a possessory interest from a prior concessioner depreciation of the
related structure for purposes of leasehold surrender interest value
will apply only to the portion of the structure to which the possessory
interest applied.
Sec. 51.80 What happens if there is a dispute between the new
concessioner and a prior concessioner as to the value of the possessory
interest?
In the event of a dispute between a new concessioner and a prior
concessioner as to the value of a prior concessioner's possessory
interest, the dispute will be resolved under the procedures contained
in the possessory interest concession contract. A new concessioner
shall not agree in the aggregate or on a unit by unit basis on the
value or values of a prior concessioner's possessory interest without
the prior written approval of the Director unless the value or values
was determined through a binding value determination process required
by the possessory interest contract. The Director's written approval is
to ensure that the value or values are consistent with the terms and
conditions of the possessory interest concession contract. If a new
concessioner and a prior concessioner engage in a process to resolve a
dispute as to the value of the prior concessioner's possessory
interest, the new concessioner must allow the Director to assist the
new concessioner in resolving the dispute to the extent requested by
the Director.
Subpart H--Concession Contract Provisions
Sec. 51.81 What is the term or length of a concession contract?
The term of a concession contract must be as short as is prudent
taking into account the financial requirements of the concession
contract, resource protection and visitor needs, and other factors the
Director may deem appropriate. Concession contracts will generally be
for a term of ten years or less. In no event will a concession contract
have a term of more than twenty years. Except for the non-competitive
extensions authorized by this part, the Director may not extend
concession contracts.
Sec. 51.82 When may a concession contract be terminated by the
Director?
Concession contracts will contain appropriate provisions for
suspension of operations under a concession contract and termination of
a concession contract by the Director for default, including, but not
limited to unsatisfactory performance, or when necessary to achieve the
purposes of this part. The purposes of this part include, but are not
limited to, the purposes of protecting, conserving, and preserving park
area resources and providing necessary and appropriate visitor services
in a park area.
Sec. 51.83 May the Director split or combine concession contracts?
The Director must not segment or otherwise split visitor services
authorized or required under a single concession contract into separate
concession contracts if such action would result in a concession
contract with anticipated annual gross receipts of less than $500,000.
The Director must not segment or otherwise split visitor services
authorized or required under a single concession contract into separate
concession contracts if such action would result in the establishment
of an outfitter and guide concession contract. The Director may combine
the visitor services authorized or required by two or more existing
concession contracts into a single concession contract and may modify
the type, nature and scope of the visitor services provided under a
concession contract.
Sec. 51.84 May the Director include in a concession contract or
otherwise grant a concessioner a preferential right to provide new or
additional visitor services?
The Director must not include in a concession contract, amend a
concession contract to include, or otherwise grant a concessioner a
preferential right to provide new or additional visitor services under
the terms of a concession contract or otherwise. For the purpose of
this section, a ``preferential right to new or additional services''
means a right of a concessioner to a preference (in the nature of a
right of first refusal or otherwise) to provide new or additional
visitor services in a park area beyond those already provided by the
concessioner under the terms of a concession contract. A concessioner,
including, but not limited to, a preferred offeror, that is allocated
park area entrance, user days or similar resource use allocations for
the purposes of a concession contract will not obtain any contractual
or other rights to continuation of a particular allocation level
pursuant to the terms of a concession contract or otherwise. Such
allocations will be made, withdrawn and adjusted by the Director from
time to time in furtherance of the purposes of this part.
Sec. 51.85 Will a concession contract provide a concessioner an
exclusive right to provide visitor services?
Concession contracts will not provide in any manner an exclusive
right to provide certain or all types of visitor services in a park
area. The Director may limit the number of concession contracts to be
awarded for the conduct of visitor services in a particular park area
in furtherance of the purposes described in this part.
Sec. 51.86 Is there a special rule for transportation service
contracts?
Notwithstanding any other provision of law, a service contract (not
a concession contract) entered into by the Director solely for the
provision of park area transportation services will have a term of no
more than 10 years. The term of the service contract must include a
base term of 5 years and may allow for annual extensions for an
additional five-year period if approved by the Director.
[[Page 35532]]
Sec. 51.87 Where will the Director deposit franchise fees and how will
the Director use franchise fees?
All franchise fees and other monetary consideration (excluding
reimbursements made by a concessioner for services rendered by the
Director to the concessioner on a reimbursable basis) required to be
paid to the Director pursuant to a concession contract, including, but
not limited to, 1965 Act concession contracts, will be deposited in a
special account in the Treasury of the United States. Twenty percent of
the funds so deposited will be available for use by the Director,
without further appropriation, to support authorized activities
throughout all park areas. Eighty percent of the funds will be
available for expenditure by the Director without further appropriation
for use at the park area where the funds were generated to support
visitor services, visitor support activities conducted by the Director,
and high priority and urgently needed resource management programs and
operations.
Sec. 51.88 Will franchise fees be subject to renegotiation?
Only concession contracts with a term of more than five years will
contain a provision that provides for the adjustment of the contract's
established franchise fee. This adjustment will only occur if the
Director determines that extraordinary, unanticipated changes occurred
after the effective date of the contract which have or will
significantly effect the probable value of the privileges granted by
the contract. The concession contract will provide for binding
arbitration if the Director and a concessioner cannot agree upon an
appropriate adjustment to the franchise fee.
Sec. 51.89 May the Director waive payment of franchise fee or other
payments?
The Director may not waive the concessioner's payment of a
franchise fee or other payments or consideration required by a
concession contract.
Sec. 51.90 How will the Director establish franchise fees for multiple
outfitter and guide concession contracts in the same park area?
If the Director awards more than one outfitter and guide concession
contract that authorizes or requires the concessioners to provide the
same or similar visitor services at the same approximate location or
utilizing the same resource within a single park area, the Director
will establish franchise fees for these concession contracts that are
comparable, but not necessarily the same. In establishing these
franchise fees, the Director will take into account, as appropriate,
variations in the nature and type of visitor services authorized by
particular concession contracts, including, but not limited to, length
of the visitor experience, type of equipment utilized, relative expense
levels, and other relevant factors. The terms and conditions of an
existing concession contract will not be subject to modification or
open to renegotiation by the Director because of the award of a new
concession contract at the same approximate location or utilizing the
same resource.
Sec. 51.91 May the Director include ``special account'' provisions in
concession contracts?
The Director shall not include in concession contracts ``special
account'' provisions, that is, contract provisions which require or
authorize a concessioner to undertake with a specified percentage of
the concessioner's gross receipts the construction of capital
improvements on park lands. The construction of all such capital
improvements by the concessioner shall be undertaken pursuant to the
leasehold surrender interest provisions of this part. Concession
contracts may contain provisions which require the concessioner to set
aside a percentage of gross receipts in a maintenance reserve to be
used for the purpose of maintenance and repair of capital improvements
in which the concessioner has a leasehold surrender interest. No
additional leasehold surrender interest value shall be obtained as a
result of the expenditure of funds from a maintenance reserve. Whether
or not a concession contract contains maintenance reserve provisions,
all concession contracts shall contain provisions which require the
concessioner to maintain and repair all capital improvements in the
park area in a manner satisfactory to the Director, including, but not
limited to, capital improvements in which the concessioner has a
leasehold surrender interest, utilized by the concessioner in the
conduct of its operations in a manner satisfactory to the Director.
Sec. 51.92 Handcrafts. [Reserved]
Subpart I--Assignment or Encumbrance of Concession Contracts
Sec. 51.93 What special terms must I know to understand this Part?
To understand this subpart specifically and this part in general
you must refer to these definitions, applicable in the singular or
plural, whenever the terms are used in this part.
A controlling interest in a concession contract means an interest,
beneficial or otherwise, that permits the exercise of managerial
authority over a concessioner's performance under the terms of the
concession contract and/or decisions regarding the rights and
liabilities of the concessioner.
A controlling interest in a concessioner means, in the case of
corporate concessioners, an interest, beneficial or otherwise, of
sufficient outstanding voting securities or capital of the concessioner
or related entities that permits either the exercise of managerial
authority over the actions and operations of the concessioner. A
``controlling interest'' in a concessioner also means, in the case of
corporate concessioners, an interest, beneficial or otherwise, of
sufficient outstanding voting securities or capital of the concessioner
or related entities that permits the election of a majority of the
Board of Directors of the concessioner. The term ``controlling
interest'' in a concessioner, in the instance of a partnership, limited
partnership, joint venture, other business organization or individual
entrepreneurship, means ownership or beneficial ownership of the assets
of the concessioner that permits the exercise of managerial authority
over the actions and operations of the concessioner.
Rights to operate and/or manage under a concession contract means
any arrangement where the concessioner of record under a concession
contract employs or contracts with a third party to operate and/or
manage the performance of a concession contract (or any portion
thereof). The payments to the third party, whether a percentage of
revenues or otherwise, is not relevant. This does not apply to
arrangements with an individual employee.
Subconcessioner means a third party that has been granted by a
concessioner, with the approval of the Director, rights to operate and/
or manage the performance of a concession contract (or any portion
thereof), whether in consideration of a percentage of revenues or
otherwise. Concession contracts may prohibit subconcessioners or limit
the circumstances in which rights to operate and/or manage may be
granted by a concessioner.
Sec. 51.94 What assignments require the approval of the Director?
The concessioner may not assign, sell, convey, grant, contract for,
or otherwise transfer (these transactions are collectively referred to
as ``assignments'' for purposes of this part), without the
[[Page 35533]]
prior written approval of the Director, any of the following:
(a) Any concession contract;
(b) Any rights to operate and/or manage the performance of a
concession contract;
(c) Any revenues generated by a concession contract;
(d) Any controlling interest in a concessioner;
(e) Any controlling interest in a concession contract; or
(f) Any leasehold surrender interest or possessory interest
obtained under a concession contract.
Sec. 51.95 What encumbrances require the approval of the Director?
The concessioner may not encumber, pledge, mortgage or otherwise
provide as a security interest for any purpose (such transactions
collectively referred to as ``encumbrances'' for purposes of this
part), without the prior written approval of the Director, any of the
following:
(a) Any concession contract;
(b) Any rights to operate and/or manage performance under a
concession contract;
(c) Any revenues generated by a concession contract;
(d) Any controlling interest in a concessioner;
(e) Any controlling interest in a concession contract;
(f) Any tangible personal property used in the performance of the
concession contract within the park area; or
(g) Any leasehold surrender interest or possessory interest
provided by a concession contract.
Sec. 51.96 Does the concessioner have an unconditional right to
receive the Director's approval for an assignment or encumbrance?
Approval of a assignment or encumbrance by the Director is not a
matter of right to a concessioner. In addition to the required
determinations described in this part, the following limitations apply
to approvals of assignments and encumbrances:
(a) The Director may only approve an encumbrance if the sole
purpose of the encumbrance is either to finance the construction of
capital improvements under the applicable concession contract in the
applicable park area or to finance the purchase of the applicable
concession contract. An encumbrance may not be made for any other
purpose, including, but not limited to, providing collateral for other
debt of a concessioner, the parent of a concessioner, or an entity
related to a concessioner;
(b) The Director may not approve an encumbrance that purports to
provide the creditor or assignee any rights beyond those provided by
the applicable concession contract, including, but not limited to, any
rights to conduct business in a park area except in strict accordance
with the terms and conditions of the applicable concession contract;
(c) The Director may not approve an encumbrance that purports to
permit a creditor or assignee of a creditor, in the event of default or
otherwise, to begin operations under the applicable concession contract
before the Director determines whether the proposed operator is a
qualified person as defined in this part; and
(d) The Director will not approve an assignment or encumbrance if
the transaction purports to assign or encumber assets that are not
owned by the concessioner or park area entrance, user day, or similar
use allocations made by the Director.
Sec. 51.97 What happens if an assignment or encumbrance is completed
without the approval of the Director?
Assignments or encumbrances completed without the prior written
approval of the Director will be considered as null and void and a
material breach of the applicable concession contract which may result
in termination of the contract for cause. No person will obtain any
valid or enforceable rights in a concessioner, concession contract,
rights to operate or manage under a concession contract as a
subconcessioner or otherwise, revenues generated by a concession
contract, or leasehold surrender interest or possessory interest, if
acquired in violation of these requirements.
Sec. 51.98 What happens if there is a default on an encumbrance
approved by the Director?
In the event of default on an encumbrance approved by the Director
in accordance with this part, the creditor, or an assignee of the
creditor, may succeed to the interests of the concessioner only to the
extent provided by the approved encumbrance.
Sec. 51.99 How does the concessioner get the Director's approval
before making an assignment or encumbrance?
Before completing any assignment or encumbrance which may be
considered to be the type of transaction described in this part,
including, but not limited to, the assignment or encumbrance of what
may possibly be a controlling interest in a concessioner or a
concession contract, the concessioner must request in writing approval
of the transaction by the Director. The Director will provide an
application form for this purpose.
Sec. 51.100 What information will the Director require in the
application?
The application for the Director's approval of an assignment or
encumbrance will require that the following information be provided in
such detail as the Director may specify:
(a) All instruments proposed to implement the transaction;
(b) An opinion of counsel to the effect that the proposed
transaction is lawful under all applicable federal and state laws;
(c) A narrative description of the proposed transaction, and, where
applicable, the transferee's plans for conducting the operation;
(d) A statement as to the existence and nature of any litigation
relating to the proposed transaction;
(e) A description of the management qualifications, financial
background, and financing and operational plans of any proposed
transferee;
(f) A descriptive statement as to whether and in what manner the
proposed transaction constitutes the assignment or encumbrance of a
controlling interest as described in this subpart;
(g) A detailed description of all financial aspects of the proposed
transaction;
(h) Prospective financial statements (proformas) that have been
examined by an independent accounting firm;
(i) A schedule that allocates in detail the purchase price (or, in
the case of a transaction other than an asset purchase, the valuation)
of all assets assigned or encumbered. This includes capital
improvements on a unit by unit basis, tangible personal property
individually or aggregated into groups of like items, and intangible
assets individually itemized. In addition the applicant must provide a
description of the basis for all allocations and ownership of all
assets;
(j) A statement from the transferee that if the assigning
concessioner does not submit to the Director its final financial
statement within sixty days after the closing date of the assignment,
the transferee will do so within one hundred and twenty days after the
closing date of the assignment;
(k) A statement and narrative explanation as to why the proposed
assignment or encumbrance is not prohibited under the limitations
contained in this part; and
(l) Such other information as the Director may require.
[[Page 35534]]
Sec. 51.101 May the Director waive any of these documentation
requirements?
The Director may waive portions of these documentation requirements
in circumstances where particular documents are considered unnecessary.
Sec. 51.102 What are standard proformas?
Concessioners are encouraged to submit standard prospective
financial statements (proformas) pursuant to this part. A ``standard
proforma'' is one that:
(a) Provides projections, including revenues and expenses, that are
consistent with the concessioner's past operating history. If
projections that are not consistent with the concessioner's past
history are used, the proforma must be accompanied by a narrative that
describes why differing expectations are achievable and realistic;
(b) Assumes that any loan related to an assignment or encumbrance
will be paid in full by the expiration of the concession contract. If
the proforma assumes that a loan related to an assignment or
encumbrance will not be paid in full by the expiration of the
concession contract, a narrative description as to why the loan extends
beyond the term of the contract must be provided. The description must
include, but is not limited to, identification of the loan's collateral
after expiration of the concession contract;
(c) Assumes amortization of any intangible assets assigned or
encumbered as a result of the transaction over the remaining term of
the concession contract. If a proforma that assumes otherwise is
submitted, a narrative description as to why such extended amortization
period is consistent with a reasonable opportunity for profit over the
remaining term of the concession contract must be provided; and
(d) Shows, for the remaining term of the concession contract,
Internal Rates of Return (IRR), and, where applicable, Returns on
Gross, Returns on Equity, and Returns on Assets, consistent with common
industry median expectations as reflected, where applicable, in
guidelines developed by the Director. If a proforma not showing such
returns is submitted, it must be accompanied by a narrative description
that describes in detail how the returns shown are consistent with a
reasonable opportunity for profit over the remaining term of the
concession contract.
Sec. 51.103 If the concessioner submits a non-standard proforma, is
the Director more likely to disapprove the transaction?
The submission of a non-standard proforma or proformas is more
likely to result in disapproval of a transaction by the Director as
demonstrating that the transaction is inconsistent with the criteria
for approval of assignments and encumbrances as described in this part.
Sec. 51.104 If the transaction includes more that one concession
contract, how must required information be provided?
In circumstances of an assignment or encumbrance that includes more
than one concession contract, the concessioner must provide the
information described in this subpart on a contract by contract basis.
Process To Receive the Director's Approval of Assignments and
Encumbrances
Sec. 51.105 In what circumstances will the Director not approve an
assignment or encumbrance?
The Director will not approve an assignment or encumbrance
described in this part if the Director determines that it is prohibited
by any of the limitations set forth in this part. The Director also
will not approve an assignment or encumbrance described in this part if
the Director determines that:
(a) The transaction would result in the acquisition (directly, or
indirectly in the event of foreclosure under an encumbrance) by a
person the Director determines is not a qualified person or otherwise
may not be able to satisfactorily perform the terms and conditions of
the applicable concession contract;
(b) The transaction would have an adverse impact on the protection,
conservation or preservation of park resources;
(c) The transaction would have an adverse impact on the provision
of necessary and appropriate facilities and services to visitors at
reasonable rates and charges; or
(d) The terms of the transaction are likely, directly or
indirectly, to reduce an existing or a new concessioner's opportunity
to earn a reasonable profit over the remaining term of the applicable
concession contract, to adversely affect the quality of facilities and
services pursuant to the contract, or to result in a need for increased
rates and charges to the public to maintain the quality of concession
facilities and services.
Sec. 51.106 What information will the Director consider when deciding
to approve a transaction?
In deciding whether to approve an assignment or encumbrance, the
Director will consider the proformas and all other information
submitted by the concessioner as required by this part.
Sec. 51.107 Does the Director's approval of a assignment or
encumbrance include any representations of any nature?
In approving an assignment or encumbrance, the Director has no duty
to inform a transferee of any information the Director may have
relating to the concession contract, the park area, or other matters
relevant to the concession contract. In addition, in approving an
assignment or encumbrance, the Director makes no representations of any
nature to any person about any matter, including, but not limited to,
the value or potential profitability of any concession contract or
assets of a concessioner.
Sec. 51.108 May the Director amend or extend a concession contract for
the purpose of facilitating a transaction?
The Director may not amend or extend a concession contract for the
purpose of facilitating an assignment or encumbrance. The Director may
not make commitments regarding rates to the public, contract
extensions, concession contract terms and conditions, or any other
matter, for the purpose of facilitating an assignment or encumbrance.
Sec. 51.109 May the Director open to renegotiation or modify the terms
of a concession contract as a condition of the approval of a
transaction?
The Director may not open to renegotiation or modify the terms and
conditions of a concession contract as a condition of the approval of
an assignment or encumbrance. The exception is if the Director
determines that renegotiation or modification is required to avoid an
adverse impact on the protection, conservation or preservation of the
resources of a park area or an adverse impact on the provision of
necessary and appropriate visitor services at reasonable rates and
charges.
Sec. 51.110 May the Director charge a fee for the review a proposed
transaction?
The Director may charge a reasonable fee for the review of a
proposed assignment or encumbrance. The fee may not exceed the actual
cost to the Director of reviewing the proposed transaction.
Subpart J--Information and Access to Information
Sec. 51.111 What records must the concessioner keep and what access
does the Director have to records?
A concessioner (and any subconcessioners) must keep any
[[Page 35535]]
records that the Director may require for the term of the concession
contract and for five years after the termination or expiration of the
concession contract to enable the Director to determine that all terms
of the concession contract are or were faithfully performed. The
Director and any duly authorized representative of the Director must,
for the purpose of audit and examination, have access to all pertinent
records, books, documents, and papers, of the concessioner and any
parent or affiliate of the concessioner.
Sec. 51.112 What access to concessioner records will the Comptroller
General have?
The Comptroller General or any duly authorized representative of
the Comptroller General must, until the expiration of five calendar
years after the close of the business year of each concessioner (or
subconcessioner), have access to and the right to examine all pertinent
books, papers, documents and records of the concessioner and
subconcessioner (and parents and affiliates).
Sec. 51.113 What information will the Director make publicly available
about the concessioner and the concession contract?
The Director will make publicly available the following information
contained in annual financial statements submitted to the Director by
the concessioner: Gross receipts broken out by department; net income
or loss before taxes; franchise fees and building use fees; merchandise
inventories; and depreciable fixed assets and net depreciable fixed
assets, broken out by leasehold surrender interest or possessory
interest, as applicable, and personal property. The Director will also
make publicly available other information provided by a concessioner to
the Director to the extent permitted by law. Notwithstanding this
section, the Director will not make publicly available any information
relating to a particular concession contract in effect as of [the
effective date of the final rule] if the Director determines that such
exercise would constitute a material breach of the concession contract.
Sec. 51.114 When will the Director make proposals and evaluation
documents publicly available?
The Director will not make publicly available proposals submitted
in response to a prospectus, information contained in such proposals
and documents generated by the Director evaluating such proposals,
until the date that the new concession contract solicited by the
prospectus is awarded. At that time, the Director will make such
information and documents available to the extent required by law.
Subpart K--The Effect of the 1998 Act's Repeal of the 1965 Act
Sec. 51.115 Did the 1998 Act repeal the 1965 Act?
Section 415 of the 1998 Act repealed the 1965 Act and related laws
as of November 13, 1998. This repeal did not affect the validity of any
1965 Act concession contract. The provisions of the 1998 Act, however,
apply to all 1965 Act concession contracts except to the extent that
such provisions are inconsistent with the terms and conditions of a
1965 Act concession contract.
Sec. 51.116 What is the effect of the 1998 Act's repeal of the 1965
Act's renewal preference?
(a) Section 5 of the 1965 Act granted all existing satisfactory
concessioners a preference in the renewal (termed a ``renewal
preference'' for purposes of this section) of its concession contract
or permit as a statutory right. The repeal of the 1965 Act by the 1998
Act repealed this statutory renewal preference as of November 13, 1998.
Standard 1965 Act concession contracts awarded by the Director did not
provide a renewal preference as a matter of a contract right. However,
if a concessioner holds a 1965 Act concession contract in effect as of
November 13, 1998, and the concessioner considers that the particular
terms and conditions of its 1965 Act concession contract grant the
concessioner, as a matter of contract right, a renewal preference, the
concessioner may appeal this position to the Director. Such appeal must
be in writing and be received by the Director no later than thirty days
after the issuance of a prospectus for a concession contract under this
part for which the concessioner asserts a renewal preference. The
concessioner submitting such an appeal, if its appeal is still pending
as of the date for submission for proposals pursuant to an applicable
prospectus, must submit a responsive proposal pursuant to the
prospectus. If the concessioner fails to submit a responsive proposal,
the Director must consider the concessioner's appeal moot and no
renewal preference will apply to the new concession contract. Where
applicable, the Director will give notice of this appeal to all
potential offerors that requested a prospectus.
(b) The Director may delegate consideration of such appeals only to
a Deputy or Associate Director. The deciding official must prepare a
written decision on the appeal, taking into account the content of the
appeal and other available information. The written decision on the
appeal must be issued before the Director selects the best proposal
received pursuant to the applicable prospectus. If the appeal results
in the appealing concessioner being determined as having a renewal
preference under a 1965 Act contract, and the appealing concessioner
does or did submit a responsive proposal, the concessioner will be
entitled to exercise a right of preference to the concession contract
as otherwise described in and subject to the otherwise applicable
conditions of this part, including, but not limited to, the requirement
to submit a responsive offer under an applicable prospectus. No person
will be considered as having exhausted administrative remedies with
respect to assertion of the existence of a renewal preference under a
1965 Act concession contract until the Director makes an appeal
decision in accordance with this section. Any renewal preference the
Director may determine to exist pursuant to this section will apply
only to the award of the first concession contract that replaces a 1965
Act concession contract.
Sec. 51.117 What renewal preference exceptions are made for Glacier
Bay cruise ships?
Notwithstanding the provisions of the 1998 Act which repealed the
statutory renewal preference provided by the 1965 Act, the Director, in
awarding future Glacier Bay cruise ship concession contracts covering
cruise ship entries for which a renewal preference existed prior to the
passage of the 1998 Act, must provide for such cruise ship entries a
right of preference as described in this part even though such cruise
ship concession contracts are not outfitter and guide contracts and may
result in annual gross receipts in excess of $500,000. The final date
of expiration of any Glacier Bay cruise ship concession contract
awarded under this special authority will be December 31, 2009.
Subpart L--Information Collection
Sec. 51.118 Have information collection procedures been followed?
(a) The information collection for submission of offers in response
to concession prospectuses contained in this part have been approved by
the Office of Management and Budget as required by 44 U.S.C. 3501 et
seq. and assigned clearance number 1024-0125, effective through
December 31, 1999. An information collection for proposed sales of
concession operations was previously covered by OMB Approval
[[Page 35536]]
No. 1024-0126, which expired January 31, 1996. An OMB form 83-I has
been prepared but has not yet been approved by OMB. Response is
required to obtain a concession contract in accordance with the 1998
Act.
(1) As required by 5 CFR 1320.8(d)(1), the National Park Service is
soliciting public comments as to:
(i) Whether the collection of information is necessary for the
proper performance of the functions of the bureau, including whether
the information will have practical utility;
(ii) The accuracy of the bureau's estimate of the burden of the
collection of information, including the validity of the methodology
and assumptions used;
(iii) The quality, utility, and clarity of the information to be
collected; and
(iv) How to minimize the burden of the collection of information on
those who are to respond, including the use of appropriate automated
electronic, mechanical, or other forms of information technology.
(2) A Federal agency may not conduct or sponsor, and a person is
not required to respond to, a collection of information unless it
displays a currently valid OMB control number.
(b) The public reporting burden for the collection of information
for the purpose of preparing a proposal in response to a contract
solicitation is estimated to average 480 hours per proposal for large
authorizations and 240 hours per proposal for small authorizations. The
public reporting burden for the collection of information for the
purpose of requesting approval of a sale or transfer of a concession
operation is estimated to be 80 hours. Please send comments regarding
this burden estimate or any other aspect of this collection of
information, including suggestions for reducing the burden, to the
Information Collection Officer, National Park Service, 1849 C Street,
Washington, DC 20240; and to the Attention: Desk Officer for the
Interior Department, Office of Information and Regulatory Affairs,
Office of Management and Budget, Washington, DC 20503.
Dated: June 23, 1999.
Donald J. Barry,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 99-16490 Filed 6-29-99; 8:45 am]
BILLING CODE 4310-70-P