[Federal Register Volume 67, Number 229 (Wednesday, November 27, 2002)]
[Proposed Rules]
[Pages 70899-70904]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-29783]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 52

RIN 1024-AC85


Commercial Use Authorizations

AGENCY: National Park Service, Interior.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would establish National Park Service (NPS) 
regulations concerning the issuance and administration of commercial 
use authorizations. Commercial use authorizations are a form of NPS 
written authorization under which persons are allowed to provide 
certain commercial services to visitors of areas of the national park 
system. The issuance of commercial use authorizations is authorized by 
Section 418 of the National Parks Omnibus Management Act of 1998, 
Public Law 105-391. The proposed commercial use authorization program 
will replace the current NPS ``incidental business permit'' program 
when adopted.

DATES: Written comments on the rulemaking must be received on or before 
January 27, 2003. Written comments on the information collection must 
be received by Office of Management and Budget on or before December 
27, 2002.

ADDRESSES: Written comments for the rulemaking should be sent to 
Cynthia Orlando, Concessions Program Manager, National Park Service, 
1849 C Street, NW., (2410), Washington, DC 20240. Fax: (202) 371-2090. 
Email: [email protected]. Written comments for the information 
collection should be sent to Attention Desk Officer for the Department 
of the Interior, Office of Information and Regulatory Affairs, Office 
of Management and Budget, 725 17th Street, NW., Washington DC 20503.

FOR FURTHER INFORMATION CONTACT: Cynthia Orlando, Concession Program 
Manager, National Park Service, 1849 C Street, NW., (2410), Washington, 
DC 20240. Fax: (202) 371-2090.

SUPPLEMENTARY INFORMATION:

Background

    Section 418 of the National Parks Omnibus Management Act of 1998, 
Public Law 105-391 authorizes NPS to issue commercial use 
authorizations to persons to provide commercial services to visitors of 
areas of the national park system. There are two types of commercial 
use authorizations, incidental activity commercial use authorizations 
and in-park commercial use authorizations. The types of commercial 
activities that may be authorized under commercial use authorizations 
are similar in many respects to the type of activities that are 
authorized by concession contracts issued under 36 CFR part 51, as 
amended. Generally, however, commercial use authorizations, unlike 
concession contracts, do not authorize the construction of improvements 
in a park area by a holder, and, except in limited circumstances, 
require that the services provided by the holder begin and end outside 
of a park area. The proposed regulations when finalized will assure 
that all NPS commercial use authorizations are issued or solicited and 
awarded consistently and that the private sector will be aware of NPS 
authorizing procedures. The proposed commercial use authorization 
program will replace the current NPS ``incidental business permit'' 
program when adopted.
    Section 52.1 Authority and Purposes generally describes the 
authorities for and purposes of the proposed rule. The basic authority 
is 16 U.S.C. 1 et seq., the National Park Service Organic Act. This is 
supplemented by section 418 of the National Parks Omnibus Management 
Act of 1998, 16 U.S.C. 5966. Commercial use authorizations may 
authorize commercial services in park areas that are similar to or the 
same as some types of services authorized by concession contracts 
issued by the Director under 36 CFR Part 51. Concession contracts may 
be issued to authorize the provision of services to visitors rather 
than a commercial use authorization even though the proposed services 
may be suitable to authorization under a commercial use authorization. 
The Director may only issue commercial use authorizations under the 
terms and conditions of this part.

Drafting Information

    The primary authors of this rule are the members of a team of NPS 
officials that manage commercial activities in units of the National 
Park System.

Compliance with Other Laws

Regulatory Planning and Review (Executive Order 12866)

    In accordance with the criteria in Executive Order 12866, the 
Office of Management and Budget makes the final determination as to the 
significance of this regulatory action and it has determined that this 
document is a significant rule and is subject to review.
    (1) This rule will not have an effect of $100 million or more on 
the economy. It will not adversely affect in a material way the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities.
    (2) This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency.
    (3) This rule does not alter the budgetary effects or entitlements, 
grants, user fees, or loan programs or the rights or obligations of 
their recipients.

[[Page 70900]]

    (4) This rule does not raise novel legal or policy issues.

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. (5 U.S.C. 553 does not apply to regulations regarding 
contracts or public lands.) NPS is soliciting public comment on this 
proposed rule as a matter of policy.
    However, NPS considers that, even if the proposed regulations were 
subject to the Regulatory Flexibility Act, they would not have a 
significant effect on a substantial number of small businesses within 
the meaning of the Act. This is because the proposed regulations 
generally only codify, in response to Section 418 of Public Law 105-
391, NPS's current requirements regarding incidental business permits. 
After the proposed regulations are finalized, incidental business 
permits will be replaced by commercial use authorizations with no 
anticipated significant changes to the program as currently 
implemented. In addition, although the large majority of the some 4,000 
businesses now holding incidental business permits are ``small 
businesses'' within the meaning of the Regulatory Flexibility Act, 
these businesses (firewood sales, trail guiding, tow truck operators, 
etc.) represent only a minuscule fraction of the total number of such 
businesses operating in the United States. In this connection, NPS also 
notes that the proposed regulations do not in fact ``regulate'' small 
businesses in the usual sense of the word. This is because no business 
is subject to the proposed regulations unless its owner seeks to 
conduct commercial activities on federal land. The regulations have no 
applicability to the activities of any business that is not conducted 
on federal lands.

Small Business Regulatory Enforcement Act (SBREFA)

    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 policies and 
procedures for the issuance of commercial use authorizations for areas 
of the National Park System.

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. The 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 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 (Executive Order 13132)

    In accordance with Executive Order 13132, 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 (Executive Order 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.

Paperwork Reduction Act

    This rule requires an information collection from 10 or more 
parties and a submission under the Paperwork Reduction Act is required. 
An OMB form 83-I has been reviewed by the Department and sent to the 
Office of Management and Budget (OMB) for approval. OMB has up to 60 
days to approve or disapprove this information collection but may 
respond after 30 days. Therefore, in order to assure maximum 
consideration, written comments, suggestions or objections should be 
submitted on or before December 27, 2002 to Attention: Desk Officer for 
the Interior Department, Office of Information and Regulatory Affairs, 
Office of Management and Budget, 725 17th Street, NW., Washington, DC 
20503. Also, provide a copy of any written comments on this information 
collection submitted to OMB by mail to: Cynthia Orlando, Concession 
Program Manager, National Park Service, 1849 C Street, NW., (2410), 
Washington, DC 20240. E-mail: [email protected].
    The information collection contained in this proposed regulation is 
entitled Commercial Use Authorization, Issuance and Reporting 
Requirements. This collection is based on the requirement for persons 
interested in conducting business within national parks to provide 
information regarding their business (documented in the CUA form 
submitted for approval), provide a non-refundable application fee when 
filing, and annually report gross receipts from business conducted 
within national parks. The initial request and the CUA form allows the 
holder to apply for and conduct business in national parks and the NPS 
to retain a written record of the holder's business information. The 
application fee is used to recover the administrative costs associated 
with issuing the CUA permit. The reporting requirement enables the NPS 
to verify that the holder has received less than $25,000 in gross 
receipts for business conducted within national parks and determines 
eligibility for the CUA.
    The NPS expects to receive/award about 3,500 applicants annually. 
Holders will be required to report gross receipts once a year to the 
NPS. We expect the annual hours burden to the public to be 14,000 
hours--3,500 hours for the initial request, 3,500 hours for the 
application and 7,000 hours for the reporting requirement. 
Additionally, we expect to have an annual monetary burden of $525,000 
resulting from the application fee [$150 x 3,500 applicants]. The 
application fee total burden is based on an average fee of $150 per 
applicant (from a range of $50-$250 per application) and 3,500 
applicants.
    Regarding this information collection, the NPS specifically 
requests comments on whether the collection of information is necessary 
or the proper for the 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 automated 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

[[Page 70901]]

park areas, introduce non-compatible 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).

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 
on the tribes.

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 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.

Public Comment Solicitation

    If you wish to comment, you may submit your comments by any one of 
several methods. You may mail comments to Cindy Orlando, National Park 
Service, 1849 C Street, NW., (2410), Washington, DC 20240. You may also 
comment via the Internet to [email protected]. Please also 
include ``Attn: RIN 1024-AC85'' in the subject line and your name and 
return address in your Internet message. You may fax your comments to 
(202) 371-2090. Finally, you may hand-deliver comments to Cindy 
Orlando, National Park Service, 1201 Eye Street, NW., 11th Floor, 
Washington, DC. Our practice is to make comments, including names and 
home addresses of respondents, available for public review during 
regular business hours. Individual respondents may request that we 
withhold their home address from the rulemaking record, which we will 
honor to the extent allowable by law. If you wish us to withhold your 
name and/or address, you must state this prominently at the beginning 
of your comment. However, we will not consider anonymous comments. We 
will make all submissions from organizations or businesses, and from 
individuals identifying themselves as representatives or officials of 
organizations or businesses available for public inspection in their 
entirety.

List of Subjects in 36 CFR Part 52

    Concessions, National parks, Small businesses.

    Accordingly, we propose to add 36 CFR Part 52 to read as follows:

PART 52--COMMERCIAL USE AUTHORIZATIONS

Subpart A--Authority Purpose and Definitions
Sec.
52.1 What does this part cover?
52.2 Are commercial bus tour permits covered by this part?
52.3 How are certain terms defined in this part?
Subpart B--Issuance of Commercial Use Authorizations
52.4 What general conditions apply to the issuance of commercial use 
authorizations?
52.5 What are examples of an incidental activity commercial use 
authorization?
52.6 What are examples of an in-park commercial use authorization?
52.7 Is a non-profit organization required to obtain a commercial 
use authorization in order to provide services to visitors in a park 
area?
52.8 When must the Director limit the number of Special Park Use 
Permits to be issued to a park area?
Subpart C--Issuance of Commercial Use Authorizations
52.9 Who may be issued a commercial use authorization?
52.10 How does a person request the issuance of a commercial use 
authorization?
52.11 What happens after a written request for issuance of a 
commercial use authorization is made?
52.12 When must the Director limit the number of commercial use 
authorizations to be issued?
52.13 What happens if the Director determines to limit the number of 
commercial use authorizations or Special Park Use Permits to be 
issued?
52.14 When will the Director establish visitor use limits.
52.15 What special responsibilities does the Director have if only a 
limited number of commercial use authorizations are issued or if the 
Director establishes visitor use limits?
52.16 What fees must the Director charge in connection with a 
commercial use authorization?
52.17 How will the Director expend fees received from holders?
Subpart D--Terms and Conditions of Commercial Use Authorizations
52.18 What is the term of a commercial use authorization?
52.19 May a commercial use authorization be transferred?
52.20 May a commercial use authorization provide an exclusive right 
to provide commercial services in a park area?
52.21 May a commercial use authorization permit the construction of 
structures, fixtures, or improvements on lands located within the 
boundaries of a park area?
52.22 May the Director terminate a commercial use authorization?
52.23 What reporting requirements must a commercial use 
authorization contain?
52.24 May incumbent holders obtain rights or a perference to the 
issuance of subsequent commercial use authorizations or to 
particular visitor use allocations?
52.25 What records must a holder maintain and what access does the 
Director have to these records?
52.26 What other terms and conditions may or must a commercial use 
authorization contain?

    Authority: 16 U.S.C. 1 et seq.; Sec. 418, Pub. L. 105-391, 112 
Stat. 3497 (16 U.S.C. 5966).

Subpart A--Authority, Purpose and Definitions


Sec.  52.1  What does this part cover?

    This part covers the issuance and administration of commercial use 
authorizations. A commercial use authorization authorizes the holder to 
provide specific commercial services to visitors to a park area in 
certain circumstances and under specified terms and conditions. 
Commercial use authorizations may authorize commercial services in park 
areas that are similar to or the same as some types of services 
authorized by concession contracts issued by the Director under 36 CFR 
part 51. The Director at any time may choose to issue a concession 
contract in accordance with 36 CFR part 51 to authorize the conduct of 
commercial services even though the proposed services may be subject to 
authorization under a commercial use authorization. The Director may 
only

[[Page 70902]]

issue commercial use authorizations under the terms and conditions of 
this part. There are two types of commercial use authorizations, 
incidental activity commercial use authorizations and in-park 
commercial use authorizations.


Sec.  52.2  Are commercial bus tour permits covered by this part?

    No. The Director administers commercial bus tour permits under 
separate regulations and guidelines.


Sec.  52.3  How are certain 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.
    Commercial bus tour means a type of commercial service provided to 
park area visitors where passengers are conveyed into and/or out of a 
park area by motor vehicle for a direct or indirect fee or charge and 
no other services (except for on-board interpretation) are provided.
    Commercial bus tour permit means a form of written authorization 
issued for the conduct of commercial bus tours in park areas.
    Commercial use authorization means a form of written authorization 
issued by the Director to a person. The authorization authorizes the 
holder to provide specific commercial services to park area visitors in 
certain circumstances and under specified terms and conditions. Except 
as otherwise indicated the term ``commercial use authorization'' as 
used in this part collectively refers to incidental activity commercial 
use authorizations and in-park commercial use authorizations.
    Gross receipts means the total amount of revenue received by a 
holder, in cash, credit, or barter or any other form of compensation, 
from persons patronizing a holder's services.
    Holder means a person to whom a commercial use authorization has 
been issued.
    Incidental activity commercial use authorization means a commercial 
use authorization that authorizes the holder to provide specified 
commercial services to visitors to a park area when the services 
originate and terminate outside of park area boundaries.
    In-park commercial use authorization means a commercial use 
authorization (issued only if projected annual gross receipts under the 
authorization are less than $25,000) that authorizes the holder to 
provide specified commercial services to visitors of a park area that 
originate and are provided solely within the boundaries of a park area.
    Non-profit organization means an entity that has been determined by 
the Internal Revenue Service to be exempt from federal income taxation 
as a non-profit or not-for-profit organization under the terms of the 
Internal Revenue Code.
    Taxable income means income that is subject to federal income tax 
under the terms of the Internal Revenue Code.
    Use limits means limits the Director may impose on a holder's 
access to park area lands or limits on a holder's park area entries 
and/visitor levels.
    Visitor use allocations means allocations of a specified portion of 
a park area entrance, user days, or similar visitor use allowances that 
are required in order to implement park area visitor use limitations.

Subpart B--Issuance of Commercial Use Authorizations.


Sec.  52.4  What general conditions apply to the issuance of commercial 
use authorizations?

    Both types of commercial use authorizations (incidental activity 
commercial use authorizations and in-park commercial use 
authorizations) may be issued only to authorize the provision of 
commercial services to park area visitors that the Director determines 
are appropriate to the applicable park area. In addition, a commercial 
use authorization may be issued only if the Director determines that 
the authorization and the services authorized by the authorization: (1) 
Will have minimal impact on the park area's resources and values; (2) 
are consistent with the purposes for which the park area was 
established; (3) are consistent with all applicable park area 
management plans, policies and regulations; and (4) meet all other 
requirements of this part. The Director must require that provision of 
services under a commercial use authorization are accomplished in a 
manner that is consistent to the highest practicable degree with the 
preservation and conservation of the resources and values of the 
applicable park area.


Sec.  52.5  What are examples of an incidental activity commercial use 
authorization?

    An incidental activity commercial use authorization authorizes the 
holder to enter a park area to provide commercial services to visitors 
if those services originate and terminate outside of the park area's 
boundaries. The authorization does not authorize solicitation of 
customers, sales, payment or other direct commercial activity within a 
park area. An example of the type of services authorized by an 
incidental activity commercial use authorization is a guided horseback 
trail ride operation based outside of a park area that guides visitors 
into and out of a park area on a trail ride. In this example, all 
solicitation of customers, sales, and payment for the services must 
occur outside of park area boundaries. Incidental activity commercial 
use authorizations must contain appropriate provisions limiting the 
conduct of services by the holder in a manner consistent with the 
limitations set forth in this part. The Director may issue a single 
incidental activity commercial use authorization allowing commercial 
services to visitors in more than one area of the park if all other 
applicable requirements of this part are met.


Sec.  52.6  What are examples of an in-park commercial use 
authorization?

    An in-park commercial use authorization authorizes the holder to 
provide specified commercial services to visitors (issued only if 
projected gross receipts under the authorization are less than $25,000) 
that originate and are provided solely within the boundaries of the 
park area. For example, the Director may issue an in-park commercial 
use authorization to a firewood sales operator who enters a park area 
campground to sell firewood to visitors. For another example, the 
Director may issue an in-park commercial use authorization to a person 
selling crafts in a park area on a one time or occasional basis. In 
both examples, the authorization may not be issued unless the Director 
projects that the holder's annual gross receipts from the services is 
less than $25,000. If the Director projects that the annual gross 
receipts are expected to exceed $25,000, an in-park commercial use 
authorization may not authorize the services. In that instance a 
concessions contract or other applicable authorization must be issued. 
In-park commercial use authorizations must contain appropriate 
provisions limiting the holder's provision of services in a manner 
consistent with the limitations of this part.


Sec.  52.7  Is a non-profit organization required to obtain a 
commercial use authorization in order to provide services to visitors 
in a park area?

    Unless a non-profit organization holds a concession contract or is 
otherwise authorized to conduct visitor-related commercial activities 
in a park area, a non-profit organization is required to obtain a 
commercial use authorization in order to conduct visitor-related 
commercial activities in a park area if the non-profit organization 
derives taxable income from the conduct of the activities. If a non-
profit organization

[[Page 70903]]

demonstrates to the satisfaction of the Director that it derives no 
taxable income from the provision of the services or if all income 
derived is exempt from taxation under the terms of the Internal Revenue 
Code, the non-profit organization will not be required to obtain a 
commercial use authorization in order to conduct the activity. However, 
the activities of a non-profit organization in a park area are subject 
to similar oversight and control through a Special Park Use Permit and 
issued according to the provisions of Director's Order 53 and Reference 
Manual 53 (DO-53/RM-53). The Special Park Use Permit shall include 
appropriate terms, conditions, and requirements, including without 
limitation insurance requirements and fees adopted by the Director 
under separate legal authority.


Sec.  52.8  When must the Director limit the number of Special Park Use 
Permits to be issued for a park area?

    The Director must limit the number of Special Park Use Permits 
issued for a park area, including those issued to non-profit 
organizations, if the Director determines that issuing an unlimited 
number of such permits is inconsistent with the preservation and proper 
management of the resources and values of the park area or is 
inconsistent with the provisions of DO-53/RM-53.

Subpart C--Issuance of Commercial Use Authorizations.


Sec.  52.9  Who may be issued a commercial use authorization?

    Any person may request the Director to issue a commercial use 
authorization in accordance with this part and if the Director issues a 
commercial use authorization, the Director upon request must issue a 
similar commercial use authorization to all qualified persons, subject 
to section 51.12 of this part. No one is entitled to issuance of a 
commercial use authorization. Issuance of a commercial use 
authorization is in the discretion of the Director.


Sec.  52.10  How does a person request the issuance of a commercial use 
authorization?

    To request issuance of a commercial use authorization, a person 
must submit a written request. The written request must be mailed or 
delivered to the Director (to the attention of the Superintendent of 
the applicable park).


Sec.  52.11  What happens after a written request for issuance of a 
commercial use authorization is made?

    If the Director determines, in accordance with section 52.4 of this 
part, that it is not appropriate to issue a commercial use 
authorization for the specified commercial services, the Director will 
so advise the requester in writing. If the Director determines, in 
accordance with section 52.4 of this part, that it appears to be 
appropriate to issue a commercial use authorization for the specified 
services under this part, and the Director considers under this part 
that there is no need to limit the number of commercial use 
authorizations for the specified services, the Director will seek 
additional information to support completing the CUA form. The Director 
will then send the requester a proposed commercial use authorization 
with conditions. A signed copy of the proposed commercial use 
authorization, and, where required, a non-refundable application fee 
payment, must be submitted to the applicable park area. Upon receipt of 
this submission, the Director will make a final decision as to whether 
to issue a commercial use authorization for the specified commercial 
services in accordance with this part and as to whether the applicant 
is qualified to provide the services.


Sec.  52.12  When must the Director limit the number of commercial use 
authorizations to be issued?

    The Director must limit the number of commercial use authorizations 
issued for a particular type of commercial services if the Director 
determines that issuing an unlimited number of such commercial use 
authorizations is inconsistent with the preservation and proper 
management of the resources and values of the park area. The Director 
must also limit the number of commercial use authorizations issued for 
a park area if the Director determines in accordance with section 52.14 
of this part to establish visitor use limits and that continuation of 
issuance of an unlimited number of commercial use authorizations makes 
infeasible a fair and equitable distribution of visitor use 
allocations.


Sec.  52.13  What happens if the Director determines to limit the 
number of commercial use authorizations or Special Park Use Permits to 
be issued?

    If the Director determines to limit the number of commercial use 
authorizations to be issued for a particular type of commercial 
services, the issuance of the available commercial use authorizations 
must be accomplished by the Director by random selection under which 
all qualified applicants have an equal opportunity to obtain an 
authorization. Special Park Use Permit applicants, including non-profit 
organization applicants, would have similar limitations placed on the 
number of permits issued based on criteria outlined in DO-53/RM-53. An 
incumbent holder will have no right or any form of preference to 
issuance of a subsequent commercial use authorization or Special Park 
Use Permit.


Sec.  52.14  When will the Director establish visitor use limits?

    The Director will establish visitor use limits if the Director 
determines that the limits are appropriate to protect park area 
visitors or resources. If visitor use limits are established, 
authorized visitor use will be allocated by the Director among all 
holders of commercial use authorizations and Special Park Use Permits 
in a fair and equitable manner. Incumbent holders have no right of 
preference for visitor use allocations. If it is not feasible to fairly 
and equitably allocate limited visitor use among all holders, the 
Director must limit the number of commercial use authorizations to be 
issued in accordance with this part.


Sec.  52.15  What special responsibilities does the Director have if 
only a limited number of commercial use authorizations are issued or if 
the Director establishes visitor use limits?

    If the Director limits the number of commercial use authorizations 
issued for a park area with respect to a particular type of commercial 
services, and/or, if the Director establishes visitor use limits under 
this part, the Director must take appropriate measures to assure that 
all holders provide quality services to visitors at rates and charges 
that are reasonable and appropriate. Unless otherwise provided in the 
contract, the reasonableness and appropriateness of rates and charges 
shall be determined primarily by comparison with those rates and 
charges for facilities, goods, and services of comparable character 
under similar conditions, with due consideration to the following 
factors and other factors deemed relevant to the Director: length of 
season, peakloads, average percentage of occupancy, accessibility, 
availability and costs of labor and materials, and type of patronage. 
Such rates and charges may not exceed the market rates and charges for 
comparable facilities, goods, and services after taking into account 
the factors referred to in the preceding sentence.

[[Page 70904]]

Sec.  52.16  What fees must the Director charge in connection with a 
commercial use authorization?

    The Director must charge a reasonable fee for a commercial use 
authorization, in addition to any application fee. The fee must at 
least be sufficient to recover the Director's costs associated with 
management and administration of the holder's activities under the 
authorization. The fee may also include the costs for the maintenance 
and repair of park area resources impacted by the holder's activities. 
If a holder is assigned the use of improvements within a park area, the 
fee must also include the fair value of the use of the assigned 
improvements.


Sec.  52.17  How will the Director expend fees received from holders?

    All fees paid to the Director pursuant to commercial use 
authorizations shall be expended in the park area where collected to 
pay for management and administrative costs associated with commercial 
use authorizations and for other park area activities.

Subpart D--Terms and Conditions of Commercial Use Authorizations


Sec.  52.18  What is the term of a commercial use authorization?

    A commercial use authorization must have a term of two years or 
less.


Sec.  52.19  May a commercial use authorization be transferred?

    No. A commercial use authorization is not transferable. All 
commercial use authorizations must contain provisions prohibiting their 
sale or transfer.


Sec.  52.20  May a commercial use authorization provide an exclusive 
right to provide commercial services in a park area?

    No. Commercial use authorizations may only authorize a non-
exclusive right to provide commercial services in a park area.


Sec.  52.21  May a commercial use authorization permit the construction 
of structures, fixtures, or improvements on lands located within the 
boundaries of a park area?

    No. A commercial use authorization may not authorize the 
construction of structures, fixtures or improvements on lands located 
within the boundaries of a park area. A commercial use authorization 
may assign a holder use of existing structures, fixtures or 
improvements when necessary to assist in providing services to 
visitors. An incumbent holder shall have no right or any form of 
preference to the continuing utilization of assigned structures, 
fixtures or improvements under the terms of a subsequent commercial use 
authorization.


Sec.  52.22  May the Director terminate a commercial use authorization?

    Yes. A commercial use authorization must contain appropriate 
provisions allowing the Director to terminate the authorization without 
liability at any time at the discretion of the Director.


Sec.  52.23  What reporting requirements must a commercial use 
authorization contain?

    Commercial use authorizations must contain appropriate provisions 
requiring the permittee to provide the Director annually a statement of 
its gross receipts for the prior year's activities and any specific 
information related to the commercial use that the Director may 
request, including but not limited to, visitor use statistics and 
resource impact assessments. If a commercial use authorization 
authorizes the conduct of commercial services in more than one park 
area, gross receipts and other requested information and reports must 
be provided on an individual park area basis.


Sec.  52.24  May incumbent holders obtain rights or a preference to the 
issuance of subsequent visitor use authorizations or to particular 
visitor use allocations?

    No. A commercial use authorization will not grant the holder a 
right or preferences of any form to the issuance of subsequent 
commercial use authorizations or to particular visitor use allocations.


Sec.  52.25  What records must a holder maintain and what access does 
the Director have to these records?

    A commercial use authorization must contain appropriate provisions 
requiring the holder to maintain normal accounting books and records 
and granting the Director and the General Accounting Office access to 
such books and records at any time for the purpose of determining 
compliance with the terms of a commercial use service authorization and 
this part.


Sec.  52.26  What other terms and conditions may or must a commercial 
use authorization contain?

    Commercial use authorizations must contain such provisions as are 
otherwise required by law and must contain such provisions as the 
Director determines are necessary and appropriate (1) to protect park 
area visitors; (2) to assure that holders provide appropriate services 
to visitors; and (3) to protect and properly manage the resources and 
values of the park area. Commercial use authorizations must also 
contain appropriate provisions strictly limiting the holder's conduct 
of services to the services specified in the authorization issued.

    Dated: November 13, 2002.
Paul Hoffman,
Deputy Assistant Secretary, Fish and Wildlife and Parks.
[FR Doc. 02-29783 Filed 11-26-02; 8:45 am]
BILLING CODE 4310-70-P