Concession Contracts, 58261-58263 [2014-23080]

Agencies

• DEPARTMENT OF THE INTERIOR
• National Park Service

[Federal Register Volume 79, Number 188 (Monday, September 29, 2014)]
[Rules and Regulations]
[Pages 58261-58263]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-23080]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 51

[NPS-WASO-16649; PX.XVPAD0517.00.1]
RIN 1024-AE22


Concession Contracts

AGENCY: National Park Service, Interior.

ACTION: Final rule.

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SUMMARY: We are amending 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 may award a temporary concession contract. We are also 
updating consolidated information collection requirements.

DATES: This rule is effective September 29, 2014.

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

SUPPLEMENTARY INFORMATION:

Background

    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. 
This rule clarifies an ambiguity in 36 CFR 51.11, eliminates outdated 
procedural restrictions in 36 CFR 51.24, and updates 36 CFR 51.104. You 
may view information about the NPS Commercial Services Program at 
https://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. This rule clarifies 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 2000, 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. This rule 
amends Sec.  51.24(a) to provide this flexibility. The NPS anticipates 
it will 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 is deleting the text of 36 CFR 51.24(b) in its 
entirety except for the last sentence in the current subsection, which 
will be moved to become 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.
    We are also making two conforming amendments. We are deleting the 
current reference to Sec.  51.24(b) in Sec.  51.22, and we are also 
revising the current reference to Sec.  51.24(b) stated in Sec.  
51.24(c) and replacing it with a reference to Sec.  51.24(a).

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

    In November 2013, the Office of Management and Budget (OMB) 
approved our 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, we discontinued OMB Control Numbers 1024-
0125, 1024-0126, and 1024-0231. We are amending Sec.  51.104 to reflect 
this change.

Summary of Public Comments

    We published the proposed rule at 79 FR 45390 (August 5, 2014). We 
accepted comments through the mail, hand delivery, and through the 
Federal eRulemaking Portal at https://www.regulations.gov. Comments were 
accepted through September 4, 2014, and we received two timely 
comments. Both comments supported the proposed rule and did not request 
any change. After considering the public comments and after additional 
review, we did not make any changes in the final rule.

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 
significant.
    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,

[[Page 58262]]

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 https://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 (Effective Date)

    We recognize that under 5 U.S.C 553(d) new rules ordinarily go into 
effect thirty days after publication in the Federal Register. However, 
we have determined under 5 U.S.C. 553(d) and 318 DM HB 6.18 that good 
cause exists for this rule to become effective upon publication in the 
Federal Register, for the following reason. We are facing the 
possibility that, due to contracting delays, we may this year have 
expiring concession contracts that we have 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. Making this rule effective immediately upon 
publication could allow us 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.

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 
standards.

Consultation With Indian Tribes (Executive Order 13175 and Department 
Policy)

    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 rule does not contain new collections of information that 
require approval by the Office of Management and Budget under the PRA. 
The rule does 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 
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 in not 
required.
    Drafting Information: The primary author of this regulation was 
Debra Hecox, National Park Service, Commercial Services Program, 
Washington, DC.

List of Subjects in 36 CFR Part 51

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

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

PART 51--CONCESSION CONTRACTS

0
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).

Subpart C--Solicitation, Selection, and Award Procedures

0
2. Revise Sec.  51.11 to read as follows:

[[Page 58263]]

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

    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 
contract.

0
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. * * *

Subpart D--Non-Competitive Award of Concession Contracts

0
4. Revise Sec.  51.24 to read as follows:


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.

Subpart M--Information Collection

0
5. Revise Sec.  51.104 to read as follows:


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: September 22, 2014.
Michael Bean,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2014-23080 Filed 9-26-14; 8:45 am]
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