Concession Contracts
Federal Register, Volume 79 Issue 188 (Monday, September 29, 2014)
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 This rule clarifies an ambiguity in 36 CFR 51.11, eliminates outdated procedural restrictions in 36 CFR 51.24, and updates 36 CFR 51.104.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 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. 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 http://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,
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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 (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
-
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
-
Revise Sec. 51.11 to read as follows:
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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
-
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
-
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
-
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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