[Federal Register Volume 79, Number 150 (Tuesday, August 5, 2014)]
[Proposed Rules]
[Pages 45390-45393]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-18416]



National Park Service

36 CFR Part 51

[NPS-WASO-15398; PX.XVPAD0517.00.1]
RIN 1024-AE22

Concession Contracts

AGENCY: National Park Service, Interior.

ACTION: Proposed rule.


SUMMARY: We are proposing to amend our concessions contracts 
regulations to clarify that the Director may amend or extend a 
prospectus soliciting proposals for a concession contract prior to and 
including the proposal due date; and award a temporary concession 
contract. We are also updating consolidated information collection 

DATES: Comments must be received by September 4, 2014.

ADDRESSES: You may submit your comments, identified by Regulation 
Identifier Number (RIN) 1024-AE22, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail to: Debra Hecox, Commercial Services Program, 
National Park Service, 12795 West Alameda Pkwy, Lakewood, CO 80228.
    Instructions: All submissions received must include the agency name 
and RIN for this rulemaking. All comments received will be posted 
without change to http://www.regulations.gov, including any personal 
information provided. For additional information, see the Public 
Participation heading of the SUPPLEMENTARY INFORMATION section of this 
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Jo Pendry, National Park Service 
Acting Chief of Commercial Services, by telephone: 202-513-7156 or 
email: jo_pendry@nps.gov.



    The National Park Service (NPS) issues concession contracts to 
provide commercial visitor services in over 150 units of the National 
Park System under the authority of the NPS Concessions Management 
Improvement Act of 1998 (Pub. L. 105-391; 16 U.S.C. 5951-5966 (1998 
Act). Title 36 CFR Part 51, adopted in 2000, implements the 1998 Act. 
The proposed rule would clarify an ambiguity in 36 CFR 51.11, eliminate 
outdated procedural restrictions in 36 CFR 51.24, and update 36 CFR 
51.104. You may view information about the NPS Commercial Services 
Program at http://concessions.nps.gov.

Amending or Extending a Prospectus (36 CFR 51.11)

    Title 36 CFR 51.11 describes when the NPS may amend or extend the 
solicitation period for a prospectus seeking proposals for a concession 
contract opportunity. As written, the regulation could be interpreted 
to limit the agency's needed ability to amend or extend a solicitation 
on the date the solicitation period expires. The proposed rule would 
clarify that the NPS may amend a prospectus or extend the submission 
date prior to and on the proposal due date.

Awarding a Temporary Concession Contract (36 CFR 51.24)

    Under the 1998 Act, the NPS may award temporary concession 
contracts for a term not to exceed three years in order to avoid an 
interruption of services to the public. (16 U.S.C. 5952(11)).
    The current 36 CFR 51.24 describes the circumstances under which 
the NPS may award a temporary concession contract. When the NPS 
promulgated 36 CFR Part 51 in its implementation of the 1998 Act, it 
provided in Sec.  51.24 that, except in limited circumstances, the 
Director could not issue a temporary concession contract to continue 
visitor services provided under an extended contract. This regulatory 
restriction was the result of a policy decision of the NPS rather than 
a requirement of the 1998 Act. Although the NPS has successfully 
awarded replacement contracts within the term limits of contracts and 
authorized extension periods, the inventory of concession contracts 
currently includes several extended, complex contracts with respect to 
which the NPS may need the flexibility to award a temporary contract 
upon contract expiration in order to assure that visitor services 
continue uninterrupted.
    The proposed rule would amend Sec.  51.24(a) to provide this 
flexibility. The NPS anticipates it would exercise this authority 
sparingly and only when the award of a temporary contract is the only 
practical alternative to an interruption of visitor services.
    In addition, the NPS proposes the deletion of the text of 36 CFR 
51.24(b) in its entirety but with its current last sentence moved to be 
the last sentence in the amended Sec.  51.24(a) for purposes of 
determining the existence of a preferred offeror when awarding a 
temporary concession contract to continue services under an extended 
concession contract. The current Sec.  51.24(b) only applies to 
contracts that were in effect as of November 13, 1998, and that either 
had been extended as of that date or were due to expire by December 31, 
1998, and were subsequently extended. There are no longer any existing 
NPS concession contracts that fall within these limitations and this 
provision is no longer needed.
    Accordingly, we would make two conforming amendments. We are 
proposing to delete the current reference to Sec.  51.24(b) in Sec.  
51.22, and we are also proposing to revise the current reference

[[Page 45391]]

to Sec.  51.24(b) stated in Sec.  51.24(c) and replace it with a 
reference to Sec.  51.24(a).

Update to OMB Approval of Information Collection (36 CFR 51.104)

    In November 2013, OMB approved the NPS request to consolidate the 
information collection requirements associated with applying for and 
operating NPS concessions (previously approved under four separate 
control numbers: 1024-0029, 1024-0125, 1024-0126, and 1024-0231) into 
one single control number, 1024-0029. Upon receiving OMB approval for 
the renewal and consolidation of 1024-0029, the NPS discontinued OMB 
Control Numbers 1024-0125, 1024-0126, and 1024-0231.

Compliance With Other Laws, Executive Orders, and Department Policy

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. OIRA has determined that this rule is not 
    Executive Order 13563 reaffirms the principles of Executive Order 
12866 while calling for improvements in the nation's regulatory system 
to promote predictability, to reduce uncertainty, and to use the best, 
most innovative, and least burdensome tools for achieving regulatory 
ends. The Executive Order directs agencies to consider regulatory 
approaches that reduce burdens and maintain flexibility and freedom of 
choice for the public where these approaches are relevant, feasible, 
and consistent with regulatory objectives. Executive Order 13563 
emphasizes further that agencies must base regulations on the best 
available science and the rulemaking process must allow for public 
participation and an open exchange of ideas. We have developed this 
rule in a manner consistent with these requirements.

Regulatory Flexibility Act (RFA)

    This rule will not have a significant economic effect on a 
substantial number of small entities under the RFA (5 U.S.C. 601 et 
seq.). This certification is based on the cost-benefit and regulatory 
flexibility analyses found in the report entitled ``Economic Analysis 
of the Proposed Rulemaking to Amend the Concession Contract Regulations 
of the National Park Service'' which can be viewed online at http://concessions.nps.gov/regulations.htm.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2), the SBREFA. 
This rule:
    (a) Does not have an annual effect on the economy of $100 million 
or more;
    (b) Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions;
    (c) Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.

Administrative Procedure Act

    This proposed rule is available for public review and comment for a 
period of 30 days. While the NPS would typically provide a 60-day 
comment period for such rulemakings, good cause exists for the 
shortened comment period because the NPS is facing the possibility 
that, due to contracting delays, it may this year have expiring 
concession contracts that it has no authority to extend further. This 
situation could result in closure of visitor facilities at affected 
parks and thereby deprive park area visitors of needed concession 
services. This comment period will still allow public participation and 
NPS review of the comments in a time frame that would allow 
promulgation of a final rule that could allow the NPS to enter into 
temporary contracts for those expiring contracts without an 
interruption in visitor services this year. This will keep visitor 
services open, private sector businesses operating, and avoid employee 
layoffs. The NPS does not anticipate that the changes in this proposed 
rule will generate significant controversy and public comment. As a 
result, the NPS believes that the public benefits of promulgating this 
rule earlier than normal will outweigh any speculative costs that may 
be associated with shortening the comment period.

Unfunded Mandates Reform Act (UMRA)

    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local or tribal governments or the private sector. This rule clarifies 
NPS procedures and does not impose requirements on other agencies or 
governments. A statement containing the information required by the 
UMRA (2 U.S.C. 1531 et seq.) is not required.

Takings (Executive Order 12630)

    This rule does not affect a taking of private property or otherwise 
have takings implications under Executive Order 12630. A takings 
implication assessment is not required.

Federalism (Executive Order 13132)

    Under the criteria in section 1 of Executive Order 13132, the rule 
does not have sufficient federalism implications to warrant the 
preparation of a Federalism summary impact statement. A Federalism 
summary impact statement is not required.

Civil Justice Reform (Executive Order 12988)

    This rule complies with the requirements of Executive Order 12988. 
This rule:
    (a) Meets the criteria of section 3(a) requiring agencies to review 
all regulations to eliminate errors and ambiguity and write them to 
minimize litigation; and
    (b) Meets the criteria of section 3(b)(2) requiring agencies to 
write all regulations in clear language and contain clear legal 

Consultation With Indian Tribes (Executive Order 13175 and Department 

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Indian tribes through a 
commitment to consultation with Indian tribes and recognition of their 
right to self-governance and tribal sovereignty. We have evaluated this 
rule under the Department's consultation policy and under the criteria 
in Executive Order 13175 and have determined it has no substantial 
direct effects on federally recognized Indian tribes and consultation 
under the Department's tribal consultation policy is not required.

Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.)

    This proposed rule does not contain new collections of information 
that require approval by the Office of Management and Budget under the 
PRA. The rule would not impose new recordkeeping or reporting 
requirements on State, tribal, or local governments; individuals; 
businesses; or organizations. OMB has reviewed and approved the 
information collection requirements associated with concessions and 
assigned OMB Control No. 1024-0029, which expires November 30, 2016. We 
may not conduct or sponsor and you are not required to respond to a 
collection of

[[Page 45392]]

information unless it displays a currently valid OMB control number.

National Environmental Policy Act (NEPA)

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. A detailed statement 
under the NEPA of 1969 is not required. We have determined the rule is 
categorically excluded under 43 CFR 46.210(i) because it is 
administrative, legal, and technical in nature. We also have determined 
the rule does not involve any of the extraordinary circumstances listed 
in 43 CFR 46.215 that would require further analysis under NEPA.

Effects on the Energy Supply (Executive Order 13211)

    This rule is not a significant energy action under the definition 
in Executive Order 13211. A Statement of Energy Effects is not 

Clarity of This Rule

    We are required by Executive Orders 12866 (section 1(b)(12)) and 
12988 (section 3(b)(1)(B)) and by the Presidential Memorandum of June 
1, 1998, to write all rules in plain language. This means that each 
rule we publish must:
    (a) Have logical organization;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Have short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you believe that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should specifically 
identify where we could improve. For example, you should tell us the 
numbers of the sections or paragraphs you find unclear, which sections 
or sentences are too long, the sections where you would find lists or 
tables useful, etc.
    Drafting Information: The primary author of this regulation was 
Debra Hecox, National Park Service, Commercial Services Program, 
Washington, DC.

Public Participation

    The Department of the Interior, whenever practicable, affords the 
public an opportunity to participate in the rulemaking process. 
Accordingly, interested persons may submit written comments regarding 
this proposed rule by one of the methods listed in the ADDRESSES 
section. We must receive all comments by midnight of the close of the 
comment period. We will not accept bulk comments in any format (hard 
copy or electronic) submitted on behalf of others.

Public Availability of Comments

    Before including your address, phone number, email address, or 
other personal identifying information in your comment, please know 
that we may make your entire comment--including your personal 
identifying information--publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee we will be able to 
comply with your request.

List of Subjects in Part 51

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

    In consideration of the foregoing, the National Park Service 
proposes to amend 36 CFR Part 51 as follows:


1. Revise the authority citation for part 51 to read as follows:

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

2. Revise Sec.  51.11 to read as follows:

Subpart C--Solicitation, Selection, and Award Procedures

Sec.  51.11  May the Director amend, extend, or cancel a prospectus of 

    The Director may amend a prospectus or extend the submission date, 
or both, prior to and on the proposal due date. The Director may cancel 
a solicitation at any time prior to award of the concession contract if 
the Director determines in his discretion that this action is 
appropriate in the public interest. No offeror or other person will 
obtain compensable or other legal rights as a result of an amended, 
extended, canceled, or resolicited solicitation for a concession 
3. In Sec.  51.22, revise the first sentence to read as follows:

Sec.  51.22  When may the Director award 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, 
the Director must submit the concession contract to the Committee on 
Natural Resources of the House of Representatives and the Committee on 
Energy and Natural Resources of the Senate.
* * * * *
4. In Sec.  51.24:
A. Revise paragraph (a);
B. Remove and reserve paragraph (b); and
C. Revise paragraph (c).
    The revisions to read as follows:

Subpart D--Non-Competitive Award of Concession Contracts

Sec.  51.24  May the Director award a temporary concession contract 
without a public solicitation?

    (a) Notwithstanding the public solicitation requirements of this 
part, the Director may non-competitively award a temporary concession 
contract or contracts for consecutive terms not to exceed three years 
in the aggregate--e.g., the Director may award one temporary contract 
with a three year term; two consecutive temporary contracts, one with a 
two year term and one with a one year term; or three consecutive 
temporary contracts with a term of one year each--to any qualified 
person for the conduct of particular visitor services in a park area if 
the Director determines that the award is necessary to avoid 
interruption of visitor services. Before determining to award a 
temporary concession contract, the Director must take all reasonable 
and appropriate steps to consider alternatives to avoid an interruption 
of visitor services. Further, the Director must publish notice in the 
Federal Register of the proposed temporary concession contract at least 
30 days in advance of its award (except in emergency situations). A 
temporary concession contract may not be extended. A temporary 
concession contract may be awarded to continue visitor services that 
were provided under an extended concession contract pursuant to the 
terms and conditions in this paragraph. A temporary concession contract 
awarded under the authority of the prior sentence will be considered as 
a contract extension for purposes of determining the existence of a 
preferred offeror under Sec.  51.44.
    (b) [Reserved]
    (c) A concessioner holding a temporary concession contract will not 
be eligible for a right of preference to a qualified concession 
contract that replaces a temporary contract unless the concessioner 
holding the temporary concession contract was determined or was 
eligible to be determined a preferred offeror under an extended 
concession contract that was replaced by a temporary concession 
contract under paragraph (a) of this section.

[[Page 45393]]

5. Revise Sec.  51.104 to read as follows:

Subpart M--Information Collection

Sec.  51.104  Has OMB approved the collection of information?

    The Office of Management and Budget (OMB) reviewed and approved the 
information collection requirements contained in this Part and assigned 
OMB Control No. 1024-0029. We use this information to administer the 
National Park Service concessions program, including solicitation, 
award, and administration of concession contracts. A Federal agency may 
not conduct or sponsor and you are not required to respond to a 
collection of information unless it displays a currently valid OMB 
control number. You may send comments on the information collection 
requirements to the Information Collection Clearance Officer, National 
Park Service, 1849 C Street NW. (2601), Washington, DC 20240.

    Dated: July 25, 2014.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2014-18416 Filed 8-4-14; 8:45 am]