[Federal Register Volume 66, Number 128 (Tuesday, July 3, 2001)]
[Rules and Regulations]
[Pages 35082-35083]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-16612]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 51

RIN 1024-AC88


Concession Contracts

AGENCY: National Park Service, Interior.

ACTION: Final rule.

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SUMMARY: The National Park Service is amending the language of its 
concession contracting regulations, promulgated on April 17, 2000 
(``Regulations''), to amend those portions of the Regulations that 
require or may be read as requiring a concessioner to engage in binding 
arbitration for the final determination of construction costs and the 
valuation of leasehold surrender interest. The amendment makes binding 
arbitration optional in the discretion of a concessioner. This 
amendment assures that the Regulations are in legal conformance with 
Section 575 of the Administrative Disputes Resolution Act.

DATES: This rule becomes effective July 3, 2001.

FOR FURTHER INFORMATION CONTACT: Cynthia Orlando, Concession Program 
Manager, National Park Service, 1849 C Street, NW., Room 7313, 
Washington, DC 20240. Phone (202) 565-1212.

SUPPLEMENTARY INFORMATION: The National Park Service has determined 
that section 575 of the Administrative Disputes Resolution Act, 5 
U.S.C. 575, may preclude the agency from enforcing provisions of its 
Regulations (36 CFR part 51) and Standard Contract which require, or 
may be read as requiring, a concessioner to enter into binding 
arbitration with respect to the final determination of construction 
costs and the valuation of leasehold surrender interest. Accordingly, 
the language of the Regulations, promulgated in 65 FR 20630 (April 17, 
2000), regarding binding arbitration for (a) the final determination of 
construction costs, 36 CFR 51.56 and 51.57, is amended to clarify that, 
unless a concessioner chooses to request binding arbitration, the 
Director's decision as to construction costs is a final administrative 
decision; and (b) the valuation of leasehold surrender interest, 36 CFR 
51.62, is amended to make binding arbitration as to leasehold surrender 
interest value an option available only to the concessioner. After the 
publication of this rule, the National Park Service will amend the 
language of its Standard Concessions Contract, promulgated in 65 FR 
26052 (May 4, 2000) (``Standard Contract''), to reflect these 
regulatory amendments.

Compliance With Other Laws

Regulatory Planning and Review (Executive Order 12866)

    This document is a significant rule and is subject to review by the 
Office of Management and Budget under Executive Order 12866.

Regulatory Flexibility Act

    The Department of the Interior certifies that this document will 
not have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    a. Does not have an annual effect on the economy of $100 million or 
more.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    c. 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.

Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. This rule does not have a significant or unique effect on State, 
local or tribal governments or the private sector.

Takings (Executive Order 12630)

    In accordance with Executive Order 12630, the rule does not have 
significant takings implications.

Federalism (Executive Order 13132)

    In accordance with Executive Order 13132, the rule does not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment.

Civil Justice Reform (Executive Order 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 meets the requirements of sections 3(a) and 3(b)(2) 
of the Order.

Paperwork Reduction Act

    This regulation does not require an information collection from 10 
or more parties and a submission under the Paperwork Reduction Act is 
not required. An OMB Form 83-I is not required.

National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment.

Government-to-Government Relationship With Tribes

    In accordance with Executive Order 13175 ``Consultation and 
Coordination with Indian Tribal Governments'' (65 FR 67249), the 
President's memorandum of April 29, 1994, ``Government-to-Government 
Relations with Native American Tribal Governments'' (59 FR 22951) and 
512 DM 2, we have evaluated potential effects on federally recognized 
Indian tribes and have determined that there are no potential effects.

Clarity of This Regulation

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this rule easier to understand, including answers to questions such as 
the following: (1) Are the requirements in the rule clearly

[[Page 35083]]

stated? (2) Does the rule contain 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 or 
reduce its clarity? (4) Would the rule be easier to understand if it 
were divided into more (but shorter) sections? (A ``section'' appears 
in bold type and is preceded by the symbol ``Sec. '' and a numbered 
heading.)

Administrative Procedure Act

    Because this revision of the Regulations and Standard Contract is 
necessary to assure that the Regulations and Standard Contract are in 
legal conformance with section 575 of the Administrative Disputes 
Resolution Act, 5 U.S.C. 575, NPS is publishing this revision as a 
final rule. In accordance with the requirements of the Administrative 
Procedure Act, 5 U.S.C. 553, we have determined that publishing a 
proposed rule would be unnecessary and contrary to the public interest. 
Publishing a proposed rule is unnecessary because it is clear, as a 
matter of law, that the Regulations and Standard Contract should be 
amended to ensure that they are not in conflict with the Administrative 
Disputes Resolution Act. Publishing a proposed rule is also contrary to 
the public interest because the public is best served by the swift 
amendment of the Regulations and Standard Contract to assure compliance 
with the Administrative Disputes Resolution Act. We believe that 
publishing this rule 30 days before the rule becoming effective would 
be unnecessary and contrary to the public interest. Therefore, under 
the Administrative Procedure Act, 5 U.S.C. 553, we have determined that 
this final rulemaking is excepted from the 30-day delay in the 
effective date and will therefore become effective on the date 
published in the Federal Register.

List of Subjects in 36 CFR Part 51

    Concessions, Government contracts, National parks, Reporting and 
recordkeeping requirements.

    Accordingly, 36 CFR Part 51 is amended as set forth below:

PART 51--CONCESSION CONTRACTS

    1. The authority for part 51 continues to read as follows:

    Authority: The Act of August 25, 1916, as amended and 
supplemented, 16 U.S.C. 1 et seq., particularly 16 U.S.C. 3 and 
Title IV of the National Parks Omnibus Management Act of 1998 (Pub. 
L. 105-391).


    2. Revise Sec. 51.56 to read as follows:


Sec. 51.56  How will the construction cost for purposes of leasehold 
surrender interest value be determined?

    After receiving the detailed construction report (and 
certification, if requested), from the concessioner, the Director will 
review the report, certification and other information as appropriate 
to determine that the reported construction cost is consistent with the 
construction cost approved by the Director in advance of the 
construction and that all costs included in the construction cost are 
eligible direct or indirect costs as defined in this part. The 
construction cost determined by the Director will be the final 
determination of construction cost for purposes of the leasehold 
surrender interest value in the related capital improvement unless the 
concessioner requests arbitration of the construction cost under 
Sec. 51.57. The Director may at any time review a construction cost 
determination (subject to arbitration under Sec. 51.57) if the Director 
has reason to believe that it was based on false, misleading or 
incomplete information.

    3. Revise Sec. 51.57 to read as follows:


Sec. 51.57  How does a concessioner request arbitration of the 
construction cost of a capital improvement?

    If a concessioner requests arbitration of the construction cost of 
a capital improvement determined by the Director, the request must be 
made in writing to the Director within 3 months of the date of the 
Director's determination of construction cost under Sec. 51.56. The 
arbitration procedures are described in Sec. 51.51. The decision of the 
arbitration panel as to the construction cost of the capital 
improvement will be binding on the concessioner and the Director.

    4. Revise Sec. 51.62 to read as follows:


Sec. 51.62  What is the process to determine the leasehold surrender 
interest value when the concessioner does not seek or is not awarded a 
new concession contract?

    Leasehold surrender interest concession contracts must contain 
provisions under which the Director and the concessioner will seek to 
agree in advance of the expiration or other termination of the 
concession contract as to what the concessioner's leasehold surrender 
interest value will be on a unit-by-unit basis as of the date of 
expiration or termination of the concession contract. In the event that 
agreement cannot be reached, the provisions of the leasehold surrender 
interest concession contract must provide for the Director to make a 
final determination of leasehold surrender interest value unless 
binding arbitration as to the value is requested by the concessioner. 
The arbitration procedures are described in Sec. 51.51. A prior 
decision as to the construction cost of capital improvements made by 
the Director or by an arbitration panel in accordance with this part 
are final and not subject to further arbitration.

    Dated: June 11, 2001.
Joseph E. Doddridge,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 01-16612 Filed 7-2-01; 8:45 am]
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