[Federal Register Volume 65, Number 239 (Tuesday, December 12, 2000)]
[Proposed Rules]
[Pages 77538-77544]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-30866]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 18

RIN 1024-AC78


Leasing Regulations

AGENCY: National Park Service, Interior.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would amend current National Park Service 
(NPS) regulations concerning the leasing of historic properties within 
areas of the national park system to encompass additional types of 
properties as authorized by law and to change in certain respects the 
procedural requirements for leasing of properties.

DATES: We will accept written comments, suggestions or objections on or 
before February 12, 2001.

ADDRESSES: Written comments should be sent to Richard Ring, Associate 
Director, Operations and Education, National Park Service, 1849 C 
Street, NW., Washington, DC 20240.

FOR FURTHER INFORMATION CONTACT: Cindy Orlando, National Park Service 
Washington, DC 20240 (202/565-1212).

SUPPLEMENTARY INFORMATION: Section 802 of the National Parks Omnibus 
Management Act, Public Law 105-391, authorized NPS to grant leases for 
the use of buildings and associated property located within areas of 
the national park system to persons and governmental entities under 
certain conditions. This new leasing authority supplements existing NPS 
leasing authority concerning historic properties set forth in 16 U.S.C. 
470h-3 and implemented in 36 CFR Part 18. NPS proposes by amendment of 
36 CFR Part 18 to combine into one regulation the leasing authority 
provided by section 802 of Public Law 105-391 with the leasing 
authority provided by 16 U.S.C. 470h-3. This will achieve 
simplification of the NPS historic leasing process as also called for 
by section 802 of Public Law 105-391 and expand the scope of NPS 
leasing authority to all eligible properties. NPS also has authority to 
lease certain property located within units of the national park system 
under 16 U.S.C. 460l-22(a). This authority is implemented by NPS in 36 
CFR Part 17. NPS does not intend to amend 36 CFR

[[Page 77539]]

Part 17. When 36 CFR Part 18 is amended as proposed, NPS will have 
authority to lease certain types of property under 36 CFR Part 17 or 36 
CFR Part 18.

Section Content

    Section 18.1. Authority and Purposes. Section 18.1 describes the 
authority for the proposed rule.
    Section 18.2. Section 18.2 defines the terms used in the proposed 
rule.
    Section 18.3. Section 18.3 describes the types of property that NPS 
may lease under this part. In general, this part applies to leases of 
both historic and non-historic property located within the boundaries 
of park areas.
    Section 18.4. Section 18.4 describes the types of determinations 
NPS must make before it may lease property under this part. Before 
leasing property under this part, NPS must determine that the lease: 
(1) Will not result in degradation of the purposes and values of the 
park area; (2) will not deprive the park area of property necessary for 
appropriate park protection, interpretation, visitor enjoyment, or 
administration of the park area; (3) contains such terms and conditions 
as will assure the leased property will be used for an activity and in 
a manner that is consistent with the purposes established by law for 
the park area in which the property is located; (4) is compatible with 
the programs of the National Park Service; (5) is for rent at least 
equal to the fair market value rent of the leased property as described 
in section 18.5; (6) does not authorize activities that are subject to 
authorization through a concession contract, commercial use 
authorization or similar instrument; and (7), if the lease is to 
include historic property, that the lease will adequately insure the 
preservation of the historic property.
    Section 18.5. Section 18.5 describes the rent NPS must receive for 
property leased under this part. The rent must be at fair market value, 
determined after taking into account any restrictions NPS may place on 
the use of the leased property and any requirements for rehabilitation 
and maintenance of the leased property.
    Section 18.6. Section 18.6 describes the types of uses that are 
permissible for property leased under this part. In general, leased 
property may be used for any lawful purpose subject to the 
determinations called for in section 18.4. These uses may include, 
among others, office or other commercial uses. Innovative uses that are 
consistent with the requirements of this part are encouraged.
    Section 18.7. Section 18.7 describes the procedures for leasing 
property through a public bid process. The bid process may only be used 
if the amount of rent is the sole criterion for award of a lease. The 
bid process calls for public notice of the lease opportunity, 
submission of offers on a date certain, and a public bid opening and 
selection by NPS.
    Section 18.8. Section 18.8 describes the procedures for leasing 
property through a proposal solicitation process. In general, the 
proposal solicitation process calls for public issuance of a Request 
for Proposals (``RFP'') that describes the leasing opportunity and the 
criteria for selection. After submission of proposals, NPS will select 
the best proposal upon application of established selection criteria. 
These include the compatibility of the proposal to the park area and 
its visitors, the experience and financial capability of the offeror, 
and the ability and commitment of the offeror to conduct its activities 
in an environmentally enhancing manner.
    Section 18.9. Section 18.9 permits NPS to lease property to non-
profit organizations and governmental units without competitive 
procedures if NPS determines it is in the public interest to do so.
    Section 18.10. Section 18.10 describes the term of leases to be 
granted under the authority of this part. The term is to be no more 
than 60 years.
    Section 18.11. Section 18.11 describes the general terms and 
conditions that a lease granted under authority of this part must 
contain. These include provisions that assure use of the property in a 
manner consistent with the purposes of the applicable park area, and, 
if applicable, the preservation of historic property that may be 
leased.
    Section 18.12. Section 18.12 describes a number of specific terms 
and conditions that a lease granted under the authority of this part 
must contain. These include a termination for cause provision, a clause 
requiring the lessee to maintain the leased property, provisions 
regarding the use of the leased property, and, provisions that state 
that any improvements a lessee may make may only be undertaken with the 
approval of NPS.
    Section 18.13. Section 18.13 describes the information collection 
requirements of the proposed rule.

Drafting Information

    The primary authors of this rule are the members of a task force 
comprised of NPS officials involved in the leasing of national park 
system properties.

Compliance With Laws, Executive Orders and Departmental Policy

Regulatory Planning and Review (E.O. 12866)

    This rule is a significant rule within the meaning of Executive 
Order 12866 because of novel policy issues.
    a. This rule will not have an annual economic effect of $100 
million or more or adversely affect an economic sector, productivity, 
jobs, the environment or other units of government. The rule imposes no 
obligations on any entity except for persons that may seek to be 
awarded an NPS lease. It does not apply to existing NPS leases.
    b. This rule will not create inconsistencies with other agencies' 
actions as it only applies to the National Park Service.
    c. This rule will not materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients. 
The rule prescribes procedures for leasing lands of the national park 
system.
    d. This rule raises novel policy issues as it prescribes new 
procedures for leasing lands of the national park system in accordance 
with the requirements of section 802 of Public Law 105-319 and 16 
U.S.C. 470h-3.

Small Business Regulatory Enforcement Act

    This rule is not a major rule under 5 U.S.C. 804(2) , the Small 
Business Regulatory Fairness Enforcement 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 entities, 
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 procedures for the 
granting of leases of certain property located within areas of the 
national park system. Potential lessees will only submit lease 
proposals if the effects are positive.

Regulatory Flexibility Act

    This rule is not subject to the Regulatory Flexibility Act as it is 
not required to be published for comment before adoption by 5 U.S.C. 
553 or other law. NPS is soliciting public comment on this proposed 
rule as a matter of policy. In any event, the Department of the 
Interior considers that the final rule will not have a significant 
effect on a substantial number of small entities as

[[Page 77540]]

defined under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
NPS anticipates that less than one hundred leases a year will be 
awarded under this authority. In addition, the rule is only applicable 
to prospective lessees. It has no effect on existing NPS leases.

Takings

    In accordance with Executive Order 12360, this rule does not have 
significant takings implications as this rule does not apply to private 
property. A takings assessment is not required.

Federalism

    In accordance with Executive Order 12612, this 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 NPS.

Civil Justice Reform (E.O. 12998)

    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.

Information Collection

    This rule (NPS Leasing Regulations--36 CFR Part 18) requires an 
information collection from ten or more parties so a submission under 
the Paperwork Reduction Act is required. An OMB form 83-I has been 
submitted to the Office of Management and Budget for approval. The 
information collection requirements of this rule are for the purpose of 
awarding and administering NPS leases. 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.
    Six categories of information collection are contained in the rule: 
Section 18.7 (Request for Bids); Section 18.8 (Requests for 
Qualifications/Proposals); Section 18.12(c) (Subletting and Assignment 
of Leases); Section 18.12 (i)-(j) (Approval of Lessee Construction/
Demolition); Section 18.12(l) (Approval of Lessee Encumbrances); and 
Section 18.12(k) (Amendment of Leases). NPS will use the information 
collected to make administrative decisions with respect to these six 
categories. The respondents to these collections will be NPS lessees 
and prospective NPS lessees. NPS anticipates that there will be a total 
of approximately six hundred respondents per year with respect to 
Sections 18.7 and 18.8 and a total of approximately twenty-seven 
respondents per year with respect to the other information collection 
categories. NPS estimates that the total annual reporting and 
recordkeeping burden that will result from these collections of 
information will be 4392 hours, as set forth in the following chart.

----------------------------------------------------------------------------------------------------------------
                                                                     Number of       Hours per
                             Section                                 responses       response       Total hours
----------------------------------------------------------------------------------------------------------------
Section 18.7....................................................             200               1             200
Section 18.8--Complex...........................................              20              40             800
Section 18.8--Simple............................................             380               8            3040
Section 18.12(c)--Complex.......................................               1              40              40
Section 18.12(c)--Simple........................................               4               8              32
Section 18.12 (i)-(j)--Complex..................................               2              32              64
Section 18.12 (i)-(j)--Simple...................................               8               8              64
Section 18.12(k)................................................               2               4               8
Section 18.12(l)--Complex.......................................               2              40              80
Section 18.12(l)--Simple........................................               8               8              64
                                                                 -----------------------------------------------
      Total.....................................................             627           * 7.0           4392
----------------------------------------------------------------------------------------------------------------
* Average.

    Please send comments regarding this burden or estimate or any other 
aspect of this collection of information, including suggestions for 
reducing the burden, to the Desk Officer for the Interior Department, 
Office of Information and Regulatory Affairs, Office of Management and 
Budget, Washington, DC 20503 (with a copy to the Information Collection 
Officer, National Park Service, 1849 C Street, Washington, DC 20240). 
The Office of Management and Budget 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. NPS is soliciting public 
comments as to: (1) 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; (2) the accuracy 
of the bureau's estimate of the burden of the collection of 
information, including the validity of the methodology and assumptions 
used; (3) the quality, utility, and clarity of the information to be 
collected; and (4) how to minimize the burden of the collection of 
information on those who are to respond, including the use of 
appropriate electronic, mechanical, or other forms of information 
technology.

National Environmental Policy Act

    This rule does not constitute a major federal action affecting the 
quality of the human environment. A detailed statement under the 
National Environment 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 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 
(groupings 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

[[Page 77541]]

the proposed rule?; (6) 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 18

    Leasing, National Parks.

    In consideration of the forgoing, 36 CFR Part 18 is proposed to be 
revised to read as follows:

PART 18--LEASING OF PROPERTIES IN PARK AREAS

Sec.
18.1  What is the authority and purpose for this part?
18.2  What definitions do you need to know to understand this part?
18.3  What property may be leased?
18.4  What determinations must the Director make before leasing 
property?
18.5  May property be leased without receiving fair market value 
rent?
18.6  Are there limitations on the use of property leased under 
authority of this part?
18.7  How are lease proposals solicited and selected if the Director 
issues a Request for Bids?
18.8  How are lease proposals solicited and selected if the Director 
issues a Request for Proposals?
18.9  When may the Director lease property without issuing a request 
for bids or a request for proposals?
18.10  How long can the term of a lease be?
18.11  What general provisions must a lease contain?
18.12  What specific provisions may, must, or must not a lease 
contain?
18.13  Have information collection procedures been followed?

    Authority: 16 U.S.C. 1 et seq., particularly 16 U.S.C. 1a-2(k) , 
and, 16 U.S.C. 470h-3.


Sec. 18.1  What is the authority and purpose for this part?

    16 U.S.C. 1 et seq., particularly 16 U.S.C. 1a-2(k) , and, 16 
U.S.C. 470h-3 are the authorities for this part. These authorities 
allow the Director (or delegated officials) to lease certain federally 
owned or administered property located within the boundaries of park 
areas. All leases to be entered into by the Director under these 
authorities are subject to the requirements of this part.


Sec. 18.2  What definitions do you need to know to understand this 
part?

    In addition to the definitions contained in 36 CFR part 1, the 
following definitions apply to this part:
    (a) Associated property means land and/or structures (e.g., parking 
lots, retaining walls, walkways, infrastructure facilities, farm 
fields) related to a building and its functional use and occupancy.
    (b) Building means an enclosed structure located within the 
boundaries of a park area and constructed with walls and a roof to 
serve a residential, industrial, commercial, agricultural or other 
human use.
    (c) Commercial use authorization means a written authorization to 
provide services to park area visitors issued by the Director pursuant 
to Section 418 of Public Law 105-391 and implementing regulations.
    (d) Concession contract has the meaning stated in 36 CFR part 51.
    (e) Fair market value rent means the most probable rent, as of a 
specific date, in cash or in terms equivalent to cash, for which the 
property to be leased should rent for its highest and best use after 
reasonable exposure in a competitive market under all conditions 
requisite to a fair leasing opportunity, with the lessor and the lessee 
each acting prudently, knowledgeably, and for self-interest, and 
assuming that neither is under undue duress. Determinations of fair 
market value rent under this part are subject to the considerations 
stated in 18.5.
    (f) Historic land means land located within the boundaries of an 
historic property.
    (g) Historic property means buildings and land located within the 
boundaries of a park area if the buildings and land are part of a pre-
historic or historic district or site included on, or eligible for 
inclusion on, the National Register of Historic Places.
    (h) Land means unimproved real property.
    (i) Lease means a written contract entered into under the authority 
of this part through which use and possession of property is granted to 
a person for a specified period of time.
    (j) Non-historic building is a building and its associated property 
that is located within the boundaries of a park area but is not located 
within the boundaries of a pre-historic or historic district or site 
included on, or eligible for inclusion on, the National Register of 
Historic Places.
    (k) Non-historic land means land located within the boundaries of a 
park area that is not associated property and is not historic property.
    (l) Park area means a unit of the national park system.
    (m) Property means a non-historic building and/or historic property 
that is located within the boundaries of a park area and is federally 
owned or administered.
    (n) Request for bids refers to the lease bid process described in 
Sec. 18.7.
    (o) Request for proposals refers to the lease proposal process 
described in Sec. 18.8.
    (p) Responsive bid or proposal means a bid or proposal that meet 
the material requirements of a request for bids or a request for 
proposals.


Sec. 18.3  What property may be leased?

    (a) In general. The Director may lease any property under this part 
if the Director makes the determinations required by Sec. 18.4.
    (b) Non-historic land. Non-historic land may not be leased under 
this part. Certain non-historic land is eligible for leasing under 36 
CFR part 17.


Sec. 18.4  What determinations must the Director make before leasing 
property?

    Before leasing property in a park area under this part, the 
Director must determine that: The lease will not result in degradation 
of the purposes and values of the park area; the lease will not deprive 
the park area of property necessary for appropriate park protection, 
interpretation, visitor enjoyment, or administration of the park area; 
the lease contains such terms and conditions as will assure the leased 
property will be used for activity and in a manner that are consistent 
with the purposes established by law for the park area in which the 
property is located; the lease is compatible with the programs of the 
National Park Service; the lease is for rent at least equal to the fair 
market value rent of the leased property as described in Sec. 18.5; the 
proposed activities under the lease are not subject to authorization 
through a concession contract, commercial use authorization or similar 
instrument; and, if the lease is to include historic property, the 
lease will adequately insure the preservation of the historic property.


Sec. 18.5  May property be leased without receiving fair market value 
rent?

    Property may be leased under this part only if the Director ensures 
that the lease requires payment of rent to the government equal to or 
higher than the property's fair market value rent. The Director's 
determination of fair market value rent shall take into account: Any 
restrictions on the use of the property imposed by the Director that 
limit the value and/or the highest and best use of the property; and, 
any requirements under the lease for the lessee to restore, 
rehabilitate or otherwise improve the leased property. The Director may 
take into account in determining the fair market value of property 
offered for

[[Page 77542]]

lease under Sec. 18.7 the amounts of the bids received in response to 
the solicitation.


Sec. 18.6  Are there limitations on the use of property leased under 
this part?

    (a) A lease issued under this part may authorize the use of the 
leased property for any lawful purpose, subject to the determinations 
required by Sec. 18.4 and the limitations on activities set forth in 
paragraph (b) of this section.
    (b) Unless otherwise authorized by law, a lease issued under this 
part may not authorize the lessee to engage in activities that are 
subject to authorization through a concession contract, commercial use 
authorization or similar instrument. Proposed lease activities are 
subject to authorization under a concession contract if the Director 
determines in accordance with 36 CFR part 51 and park area planning 
documents and related guidelines that the proposed activities meet 
applicable requirements for issuance of a concession contract. Proposed 
activities are subject to authorization under a commercial use 
authorization if the Director determines in accordance with park area 
planning documents and related guidelines that the proposed activities 
meet applicable requirements for issuance of a commercial use 
authorization.


Sec. 18.7  How are lease proposals solicited and selected if the 
Director issues a Request for Bids?

    (a) If the amount of the rent is the only criterion for award of a 
lease, the Director may solicit bids through issuance of a request for 
bids as described in this section. If historic property is to be leased 
under the authority of this section, the Director must comply with 36 
CFR part 800 (commenting procedures of the Advisory Council on Historic 
Preservation) at an appropriate time during the leasing process.
    (b) A request for bids under this section shall be advertised by 
public notice published at least twice in local and/or national 
newspapers of general circulation. The notice shall provide at least a 
thirty (30) day period from the last date of publication for the 
submission of sealed bids. The notice will provide necessary 
information to prospective bidders. It may require submission of a rent 
deposit or advance rent payment. Bids will be considered only if timely 
received at the place designated in the request. Bids must be in the 
form specified by the Director, or, if no form is specified, a bid must 
be in writing, signed by the bidder or authorized representative, state 
the amount of the bid, and refer to the applicable public notice. If 
the notice requires submission of a rent deposit or advance rent 
payment, the bids must include the required funds in the form of a 
certified check, post office money order, bank drafts, or cashier's 
checks made out to the United States of America. The bid (and payment 
where applicable) must be enclosed in a sealed envelope upon which the 
bidder shall write: ``Bid on lease of property of the National Park 
Service'' and shall note the date the bids are to be opened.
    (c) Bids will be opened publicly by the Director at a time and 
place specified in the public notice. Bidders or their representatives 
may attend the bid opening. The bidder submitting a responsive bid 
offering the highest rent will be selected for award of the lease. A 
responsive bid is a bid that meets the material terms and conditions of 
the request for bids. The Director shall accept no bid in an amount 
less than the fair market rental value as determined by the Director. 
If two or more bids are equal, a drawing shall make the lease award by 
lot limited to the equal responsive bids received.
    (d) When a property is to be leased through a request for bids, the 
bidder that is declared by the Director to be the high bidder shall be 
bound by his bid and this part to execute the offered lease, unless the 
bid is rejected. If the declared high bidder fails to enter into the 
lease for any reason, the Director may choose to enter into the lease 
with the next highest bidder (if that bidder offered to pay at least 
the fair market rent value). The Director may reject any and all bids 
in his discretion and resolicit or cancel a lease solicitation under 
this part at any time without liability to any person.


Sec. 18.8  How are lease proposals solicited and selected if the 
Director issues a Request for Proposals?

    (a) When the award of a lease is to be based on selection criteria 
in addition to the amount of the rent, the Director must solicit 
proposals for the lease through issuance of a public Request for 
Proposals (RFP).
    (b) An RFP may be preceded by issuance of a public Request for 
Qualifications (RFQ). The purpose of an RFQ is to select a ``short 
list'' of potential offerors that meet minimum management, financial 
and other qualifications necessary for submission of a proposal in 
response to an RFP. If the Director issues an RFQ, only persons 
determined as qualified by the Director under the terms of the RFQ 
shall be eligible to submit a proposal under the related RFP.
    (c) The Director must provide public notice of the leasing 
opportunity by publication at least twice in local and/or national 
newspapers of general circulation and/or through publication in the 
Commerce Business Daily. The public notice shall contain general 
information about the leasing opportunity and advise interested persons 
how to obtain a copy of the RFP (or RFQ where applicable). The RFP (and 
RFQ where applicable) shall contain appropriate information about the 
property proposed for lease, including any limitations on the uses of 
the property to be leased, information concerning the leasing process, 
information and materials that must be contained in a proposal, the 
time and place for submission of proposals, terms and conditions of the 
lease, and the criteria under which the Director will evaluate 
proposals. The RFP may state the fair market value rent as the minimum 
acceptable rent if determined by the Director at that time. The RFP 
(and RFQ where applicable) must allow at least sixty (60) days for 
submission of proposals (or qualifications under an RFQ) unless a 
shorter period of time is determined to be sufficient in the 
circumstances of a particular solicitation.
    (d) The Director may determine that a proposal is non-responsive 
and not consider it further. A non-responsive proposal is a proposal 
that fails to meet the material terms and conditions of the RFP. After 
the submission of offers and prior to the selection of the best overall 
proposal, the Director may request from any offeror additional 
information or written clarification of a proposal, provided that 
proposals may not be amended after the submission date unless all 
offerors that submitted proposals are given an opportunity to amend 
their proposals. The Director may choose to reject all proposals 
received at any time and resolicit or cancel a solicitation under this 
part without liability to any person.
    (e)(1) The criteria to be used in selection of the best proposal 
are:
    (i) The compatibility of the proposal's intended use of the leased 
property with respect to preservation, protection, and visitor 
enjoyment of the park;
    (ii) The financial capability of the offeror to carry out the terms 
of the lease;
    (iii) The experience of the offeror demonstrating the managerial 
capability to carry out the terms of the lease;
    (iv) The ability and commitment of the offeror to conduct its 
activities in the park area in an environmentally enhancing manner 
through, among other programs and actions, energy

[[Page 77543]]

conservation, waste reduction, and recycling; and
    (v) Any other criteria the RFP may specify.
    (2) If the property to be leased is an historic property, the 
compatibility of the proposal with the historic qualities of the 
property shall be an additional selection criterion. If the RFP 
requires proposals to include the amount of rent offered, the amount of 
rent offered also shall be an additional selection criterion.
    (f) The Director will evaluate all responsive proposals received. 
The proposal determined by the Director to best meet on an overall 
basis the evaluation criteria will be selected for negotiation of the 
lease. If two or more responsive proposals are determined by the 
Director to be substantially equal under the evaluation criteria, the 
Director shall provide an opportunity for those proposals to be amended 
by their offerors as necessary for the Director to select the best 
amended proposal. In such circumstances, the Director will provide each 
offeror that submitted a substantially equal proposal appropriate 
information as to how their proposals may be amended in order to 
enhance the possibility of selection as the best amended proposal. If 
two or more proposals remain as equal after amendment, the Director 
will select for negotiation of the lease the otherwise equal proposal 
that is rated highest with respect to paragraph (e)(1)(iv) of this 
section, the conduct of activities under the lease in an 
environmentally enhancing manner.
    (g) The Director will provide the offeror that submitted the best 
overall proposal as determined by the Director a specified period of 
time to negotiate the final terms of the lease. The final terms of the 
lease must be consistent with the requirements of the RFP. If the 
negotiations do not result in an executed lease within the specified 
time period, the Director, in his discretion, may extend the 
negotiation period, terminate negotiations and negotiate with the 
offeror that submitted the next best proposal, or, cancel the 
solicitation.
    (h) RFPs may state that the amount of rent to be paid will be 
negotiated subsequently with the offeror that submitted the best 
proposal, initially or as amended. The Director may execute a lease 
only if the Director determines that it requires the lessee to pay at 
least the fair market value rent of the leased property.
    (i) The Director may execute a lease that includes historic 
property only after complying with 36 CFR part 800 (commenting 
procedures of the Advisory Council on Historic Preservation) at an 
appropriate time during the leasing process.


Sec. 18.9  When may the Director lease property without issuing a 
request for bids or a request for proposals?

    The Director, except as provided in this section, may not lease 
property without issuing a request for bids or a request for proposals 
in compliance with Sec. 18.7 or Sec. 18.8. The Director under this part 
may enter into leases with non-profit organizations (recognized as such 
by the Internal Revenue Service) or units of government without 
complying with Sec. 18.7 or Sec. 18.8 if the Director determines that 
to do so it is in the best interests of the administration of the park 
area. All other requirements of this part are applicable to leases 
entered into or to be entered into under authority of this section. The 
Director may enter into leases under this part with a term of sixty 
(60) days or less without complying with Sec. 18.7 or Sec. 18.8 of this 
part if the Director determines that to do so is in the best interests 
of the administration of the park area. If historic land is to be 
leased under the authority of this section, the Director must comply 
with 36 CFR part 800 (commenting procedures of the Advisory Council on 
Historic Preservation) before entering into the lease.


Sec. 18.10  How long can the term of a lease be?

    All leases entered into under this part shall have as short a term 
as possible, taking into account the financial obligations of the 
lessee and other factors related to determining an appropriate lease 
term. No lease shall have a term of more than 60 years. Leases entered 
under the authority of this section may not be extended.


Sec. 18.11  What general provisions must a lease contain?

    All leases entered into under this part must contain terms and 
conditions that are determined necessary by the Director to assure use 
of the leased property in a manner consistent with the purposes of the 
applicable park area as established by law, and where applicable, to 
assure the preservation of historic property. In addition, all leases 
entered into under this part must contain clauses applicable as a 
matter of law to leases and certain other mandatory provisions set 
forth in Sec. 18.12.


Sec. 18.12  What specific provisions may, must, or must not a lease 
contain?

    (a) All leases entered into under this part shall include a 
termination for cause or default provision.
    (b) All leases entered into under this part shall contain 
appropriate provisions requiring the lessee to maintain the leased 
property in good condition throughout the term of the lease.
    (c) All leases entered into under this part shall contain 
appropriate provisions regarding subletting or assignment of the leased 
property. Subletting and assignment of a lease, if permissible under 
the terms of the lease, must be subject to the Director's written 
approval that shall be granted only of the Director determines that the 
proposed sub-lessee or assignee is financially and managerially capable 
of carrying out the terms of the lease. Assignment of a lease for the 
purpose of effectuating an encumbrance to the lease or the leased 
property is subject to approval pursuant to the requirements of 
paragraph (l) of this section.
    (d) All leases entered into under this part must contain 
appropriate provisions requiring the lessee to secure and maintain from 
responsible companies insurance sufficient to indemnify losses 
connected with or occasioned by the use and activities authorized by 
the lease. Types and amounts of insurance coverage will be specified in 
writing and periodically reviewed by the Director.
    (e) All leases entered into pursuant to this part, unless the 
Director determines otherwise in the circumstances of a particular 
lease, must contain provisions requiring the lessee to obtain from 
responsible companies casualty insurance (including flood insurance if 
applicable) in the amount of at least the replacement value of any 
leased property. In the event of casualty, the lessee shall be required 
to repair or replace damaged or destroyed property unless otherwise 
determined by the Director. If the Director does not require the lessee 
to repair or replace damaged or destroyed property, any insurance 
proceeds due the lessee shall be remitted to the Director without 
offset as additional rent payment for the leased property.
    (f) All leases entered into pursuant to this part must contain 
appropriate provisions requiring the lessee to save, hold harmless, and 
indemnify the United States of America and its agents and employees for 
all losses, damages, or judgments and expenses resulting from personal 
injury, death or property damage of any nature arising out of the 
lessee's activities under the lease, and/or the activities of the 
lessee's employees, subcontractors, sub-lessees, or agents. No lease 
entered into this part may contain provisions intended to provide 
indemnification or other

[[Page 77544]]

assurances to the lessee regarding the conduct or activities of the 
Director concerning the lease or the administration of the applicable 
park area. Leases may contain appropriate provisions that commit the 
Director to accept responsibility for tortious actions of government 
officials to the extent authorized by the Federal Torts Claim Act or as 
otherwise expressly authorized by law.
    (g) All leases entered into under this part shall contain 
appropriate provisions requiring the lessee to pay for use of all 
utilities used by the lessee, and, all taxes and assessments imposed by 
federal, state, or local agencies applicable to the leased property or 
to lessee activities.
    (h) All leases entered into under this part shall contain 
appropriate provisions stating that a lease may not be extended by the 
Director and that the lessee has no rights of renewal of the lease or 
rights of any nature to award of a new lease of the leased property 
upon the expiration of the lease or upon termination of the lease for 
any reason. Leases entered into under this part are subject to 
cancellation by the Director in the exercise of the sovereign authority 
of the United States to the extent provided by applicable law. Unless 
otherwise authorized by law, the Director may not enter into a lease a 
lease that contains provisions that provide compensation to the lessee 
in the event of expiration or termination of the lease for any reason.
    (i) Except as provided in this subsection, leases entered into 
under authority of this part may not contain provisions authorizing the 
lessee to construct new buildings or structures on leased property. 
Leases may contain appropriate provisions that authorize the lessee to 
construct, subject to the prior written approval of the Director, minor 
additions, buildings or structures determined by the Director to be 
necessary for support of the authorized activities of the lessee and 
otherwise to be consistent with the protection and purposes of the park 
area. Approval by the Director of new construction may only be granted 
if the Director makes the determinations required by Sec. 18.4.
    (j) All leases entered into under this part shall contain 
appropriate provisions to the requiring that: Any improvements to or 
demolition of leased property to be made by the lessee may be 
undertaken only after receipt of written approval from the Director; 
that any improvements to or demolition of historic property may only be 
approved if the Director determines that the improvements or demolition 
complies with the Secretary of the Interior's Standards for the 
Treatment of Historic Properties (36 CFR Part 68); any improvements 
made by a lessee shall be the property of the United States; and the 
lessee has no right of compensation for any real property improvements 
the lessee may make under the terms of the lease upon lease termination 
or expiration or otherwise.
    (k) All leases entered into under this part shall contain 
appropriate provisions that describe and limit the type of activities 
that may be conducted by the lessee on the leased property. The types 
of activities described in a lease may be modified from time to time 
with the approval of the Director through an amendment to the lease. 
The Director may approve modified activities only if the determinations 
required by Sec. 18.4 remain valid under the proposed modified 
activities and the proposed activities are otherwise determined 
appropriate by the Director.
    (l) Leases entered into under this part may contain provisions 
authorizing the lessee to pledge or encumber the lease as security, 
provided that any pledge or encumbrance of the lease and the proposed 
holder of the pledge or encumbrance must be approved in advance by the 
Director and that a pledge or encumbrance may only grant the holder the 
right, in the event of a foreclosure, to assume the responsibilities of 
the lessee under the lease or to select a new lessee subject to the 
approval of the Director. Pledges or encumbrances may not grant the 
holder the right to alter or amend in any manner the terms of the 
lease.
    (m) All leases entered into under this part will contain provisions 
stating to the effect that fulfillment of any obligations of the 
government under the lease is subject to the availability of 
appropriated funds. No lease issued under authority of this part shall 
entitle the lessee to claim benefits under the Uniform Relocation 
Assistance Act of 1970 (Pub. L. 91-646). All leases entered into under 
the authority of this part shall require the lessee to waive any such 
benefits. All leases entered into under this part shall contain 
provisions granting the Director and the Comptroller General access to 
the records of the lessee as necessary for lease administration 
purposes and/or as provided by applicable law.


Sec. 18.13  Have information collection procedures been followed?

    (a) As required by 5 CFR 1320.8(d)(1), NPS is soliciting public 
comments as to: 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; the accuracy of 
the bureau's estimate of the burden of the collection of information, 
including the validity of the methodology and assumptions used; the 
quality, utility, and clarity of the information to be collected; and 
how to minimize the burden of the collection of information on those 
who are to respond, including the use of appropriate electronic, 
mechanical, or other forms of information technology. 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 bid or proposal in response to a lease 
solicitation is estimated to average 40 hours per large proposal and 20 
hours for small proposals or bids. Please send comments regarding this 
burden or 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: May 30, 2000.
Donald J. Barry,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 00-30866 Filed 12-11-00; 8:45 am]
BILLING CODE 4321-70-P