99-16490. Concession Contracts  

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

Document Information

Published:
06/30/1999
Department:
National Park Service
Entry Type:
Proposed Rule
Action:
Proposed rule.
Document Number:
99-16490
Dates:
We will accept written comments, suggestions or objections on or before August 30, 1999.
Pages:
35516-35536 (21 pages)
RINs:
1024-AC72: Concession Contracts
RIN Links:
https://www.federalregister.gov/regulations/1024-AC72/concession-contracts
PDF File:
99-16490.pdf
CFR: (118)
36 CFR 51.1
36 CFR 51.2
36 CFR 51.3
36 CFR 51.4
36 CFR 51.5
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