326 Part 51—Concession Contracts

§ 34.7 36 CFR Ch. I (7–1–18 Edition)

§ 34.7 Cultivation of controlled sub- either temporarily or permanently psy- stances. chologically or mentally impaired to a In addition to the provisions of § 2.35 degree that the person is gravely dis- of this chapter, the planting, culti- abled or that presents a clear danger to vating, harvesting, drying or proc- that person or another, may take such essing of a controlled substance, or any person into protective custody. An au- part thereof, is prohibited. thorized person taking protective custody action pursuant to this paragraph § 34.8 Preservation of natural, cultural shall deliver the person to the care of and archeological resources. the Mariposa County Mental Health In addition to the provisions of § 2.1 Authorities for an initial 72-hour eval- of this chapter, the following are in ef- uation in accordance with applicable fect: provisions of the California Welfare (a) Upon nonleased lands, the cutting and Institutions Code. or removal of any tree, plant, or shrub (c) An authorized person may take or part thereof is prohibited without a into protective custody any juvenile permit from the Superintendent. found within the administrative site (b) Upon leased lands, the cutting or who is deemed to be a runaway accord- removal of any tree, plant, shrub or ing to applicable provisions of the Cali- part thereof that is six inches or less in fornia Welfare and Institutions Code. diameter, for the purpose of maintain- An authorized person taking protective ing its proper health and appearance or custody action pursuant to this para- for reasons of public safety, is allowed. graph shall deliver the juvenile to the Cutting or removing any vegetation ex- care and custody of the Mariposa Coun- ceeding six inches in diameter without ty Sheriff’s Office. a permit from the Superintendent is prohibited. § 34.10 Saddle and pack animals. (c) Upon leased lands, the planting of The use of saddle and pack animals is personal gardens or domestic trees is prohibited without a permit from the allowed subject to all applicable Fed- Superintendent. eral, State, and County agricultural regulations. Provided, however: the Su- § 34.11 Boating operations. perintendent may temporarily suspend this general privilege in the event of a The launching or operation of a water shortage or agricultural pest or motor boat is prohibited. disease emergency. (d) Wood gathering is prohibited ex- § 34.12 Information collection. cept in accordance with conditions and The information collection require- within areas designated by the Super- ments contained in §§ 34.6, 34.8 and 34.10 intendent. Violation of such conditions have been approved by the Office of or gathering wood outside of des- Management and Budget under 44 ignated areas is prohibited. U.S.C. 3501 et seq., and assigned clearance number 1024–0026. This informa- § 34.9 Protective custody. tion is being collected to solicit infor- (a) An authorized person, with rea- mation necessary for the Super- sonable cause to believe that a juvenile intendent to issue permits and other found within the administrative site benefits, and to gather information. has been unlawfully abused or ne- This information will be used to grant glected by any person living in the ju- administrative benefits. The obligation venile’s place of residence, may take to respond is required to obtain a ben- such juvenile into protective custody. efit. An authorized person taking protective custody action pursuant to this para- PART 51—CONCESSION graph shall deliver the juvenile to the CONTRACTS care and custody of the appropriate State or local authorities. Subpart A—Authority and Purpose (b) An authorized person, with reasonable cause to believe that a person Sec. found within the administrative site is 51.1 What does this part cover?

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51.2 What is the policy underlying conces- Subpart E—Right of Preference to a New sions contracts? Concession Contract Subpart B—General Definitions 51.26 What solicitation, selection and award procedures apply when a preferred offeror 51.3 How are terms defined in this part? exists? 51.27 Who is a preferred offeror and what Subpart C—Solicitation, Selection and are a preferred offeror’s rights to the Award Procedures award of a new concession contract? 51.28 When will the Director determine 51.4 How will the Director invite the gen- whether a concessioner is a preferred of- eral public to apply for the award of a feror? concession contract? 51.29 How will I know when a preferred of- 51.5 What information will the prospectus feror exists? include? 51.30 What must a preferred offeror do be- 51.6 Will a concession contract be developed fore it may exercise a right of pref- for a particular potential offeror? erence? 51.7 How will information be provided to a 51.31 What happens if a preferred offeror potential offeror after the prospectus is does not submit a responsive proposal? issued? 51.32 What is the process if the Director de- 51.8 Where will the Director publish the no- termines that the best responsive pro- tice of availability of the prospectus? posal was not submitted by a preferred 51.9 How do I get a copy of the prospectus? offeror? 51.10 How long will I have to submit my 51.33 What if a preferred offeror does not proposal? timely amend its proposal to meet the 51.11 May the Director amend, extend, or terms and conditions of the best pro- cancel a prospectus of solicitation? posal? 51.12 Are there any other additional proce- 51.34 What will the Director do if a selected dures that I must follow to apply for a preferred offeror does not timely execute concession contract? the new concession contract? 51.13 When will the Director determine if 51.35 What happens to a right of preference proposals are responsive? if the Director receives no responsive 51.14 What happens if no responsive pro- proposals? posals are submitted? 51.15 May I clarify, amend or supplement Subpart F—Determining a Preferred Offeror my proposal after it is submitted? 51.16 How will the Director evaluate pro- 51.36 What conditions must be met before posals and select the best one? the Director determines that a conces- 51.17 What are the selection factors? sioner is a preferred offeror? 51.18 When must the Director reject a pro- 51.37 How will the Director determine that posal? a new concession contract is a qualified 51.19 Must the Director award the conces- concession contract? sion contract that is set forth in the pro- 51.38 How will the Director determine that spectus? a concession contract is an outfitter and 51.20 Does this part limit the authority of guide concession contract? the Director? 51.39 What are some examples of outfitter 51.21 When must the selected offeror exe- and guide concession contracts? cute the concession contract? 51.40 What are some factors to be consid- 51.22 When may the Director award the con- ered in determining that outfitter and cession contract? guide operations are conducted in the backcountry? Subpart D—Non-Competitive Award of 51.41 If the concession contract grants a Concession Contracts compensable interest in real property improvements, will the Director find 51.23 May the Director extend an existing that the concession contract is an out- concession contract without a public so- fitter and guide concession contract? licitation? 51.42 Are there exceptions to this compen- 51.24 May the Director award a temporary sable interest prohibition? concession contract without a public so- 51.43 Who will make the determination that licitation? a concession contract is an outfitter and 51.25 Are there any other circumstances in guide contract? which the Director may award a conces- 51.44 How will the Director determine if a sion contract without public solicita- concessioner was satisfactory for pur- tion? poses of a right of preference?

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51.45 Will a concessioner that has operated 51.64 May the concessioner gain additional for less than the entire term of a conces- leasehold surrender interest by under- sion contract be considered a satisfac- taking a major rehabilitation or adding tory operator? to a structure in which the concessioner 51.46 May the Director determine that a has a leasehold surrender interest? concessioner has not operated satisfac- 51.65 May the concessioner gain additional torily after a prospectus is issued? leasehold surrender interest by replacing 51.47 How does a person appeal a decision of a fixture in which the concessioner has a the Director that a concessioner is or is leasehold surrender interest? not a preferred offeror? 51.66 Under what conditions will a conces- 51.48 What happens to a right of preference sioner obtain a leasehold surrender inter- in the event of termination of a conces- est in existing real property improve- sion contract for unsatisfactory perform- ments in which no leasehold surrender ance or other breach? interest exists? 51.49 May the Director grant a right of pref- 51.67 Will a concessioner obtain leasehold erence except in accordance with this surrender interest as a result of repair part? and maintenance of real property im- 51.50 Does the existence of a preferred offer- provements? or limit the authority of the Director to establish the terms of a concession con- Subpart H—Possessory Interest tract? 51.68 If a concessioner under a 1965 Act con- Subpart G—Leasehold Surrender Interest cession contract is not awarded a new concession contract, how will a conces- 51.51 What special terms must I know to un- sioner that has a possessory interest re- derstand leasehold surrender interest? ceive compensation for its possessory in- 51.52 How do I obtain a leasehold surrender terest? interest? 51.69 What happens if there is a dispute be- 51.53 When may the Director authorize the tween a new concessioner and a prior construction of a capital improvement? concessioner as to the value of the prior 51.54 What must a concessioner do before concessioner’s possessory interest? beginning to construct a capital improvement? 51.70 If a concessioner under a 1965 Act con- 51.55 What must a concessioner do after cession contract is awarded a new con- substantial completion of the capital im- cession contract, what happens to the provement? concessioner’s possessory interest? 51.56 How will the construction cost for pur- 51.71 What is the process to be followed if poses of leasehold surrender interest there is a dispute between the prior con- value be determined? cessioner and the Director as to the 51.57 How does a concessioner request arbi- value of possessory interest? tration of the construction cost of a cap- 51.72 If a new concessioner is awarded the ital improvement? contract, what is the relationship be- 51.58 What actions may or must the conces- tween leasehold surrender interest and sioner take with respect to a leasehold possessory interest? surrender interest? 51.59 Will leasehold surrender interest be Subpart I—Concession Contract Provisions extinguished by expiration or termination of a leasehold surrender interest 51.73 What is the term of a concession con- concession contract or may it be taken tract? for public use? 51.74 When may a concession contract be 51.60 How will a new concession contract terminated by the Director? awarded to an existing concessioner 51.75 May the Director segment or split con- treat a leasehold surrender interest ob- cession contracts? tained under a prior concession contract? 51.76 May the Director include in a conces- 51.61 How is an existing concessioner who is sion contract or otherwise grant a con- not awarded a new concession contract cessioner a preferential right to provide paid for a leasehold surrender interest? new or additional visitor services? 51.62 What is the process to determine the 51.77 Will a concession contract provide a leasehold surrender interest value when concessioner an exclusive right to pro- the concessioner does not seek or is not vide visitor services? awarded a new concession contract? 51.78 Will a concession contract require a 51.63 When a new concessioner pays a prior franchise fee and will the franchise fee be concessioner for a leasehold surrender in- subject to adjustment? terest, what is the leasehold surrender 51.79 May the Director waive payment of a interest in the related capital improve- franchise fee or other payments? ments for purposes of a new concession 51.80 How will the Director establish fran- contract? chise fees for multiple outfitter and

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guide concession contracts in the same Subpart L—The Effect of the 1998 Act’s park area? Repeal of the 1965 Act 51.81 May the Director include ‘‘special account’’ provisions in concession con- 51.101 Did the 1998 Act repeal the 1965 Act? tracts? 51.102 What is the effect of the 1998 Act’s re- 51.82 Are a concessioner’s rates required to peal of the 1965 Act’s preference in re- be reasonable and subject to approval by newal? the Director? 51.103 Severability. 51.83 Sale of Native handicrafts. Subpart M—Information Collection Subpart J—Assignment or Encumbrance of Concession Contracts 51.104 Has OMB approved the collection of information?

51.84 What special terms must I know to un- AUTHORITY: 16 U.S.C. 1 et seq., particularly, derstand this part? 16 U.S.C. 3 and Title IV of the National 51.85 What assignments require the ap- Parks Omnibus Management Act of 1998 proval of the Director? (Pub. L. 105–391). 51.86 What encumbrances require the approval of the Director? SOURCE: 65 FR 20668, Apr. 17, 2000, unless 51.87 Does the concessioner have an uncon- otherwise noted. ditional right to receive the Director’s approval of an assignment or encum- Subpart A—Authority and Purpose brance? 51.88 What happens if an assignment or en- § 51.1 What does this part cover? cumbrance is completed without the approval of the Director? This part covers the solicitation, 51.89 What happens if there is a default on award, and administration of conces- an encumbrance approved by the Direc- sion contracts. The Director solicits, tor? awards and administers concession 51.90 How does the concessioner get the Di- contracts on behalf of the Secretary rector’s approval before making an as- under the authority of the Act of Au- signment or encumbrance? gust 25, 1916, as amended and supple- 51.91 What information may the Director mented, 16 U.S.C. 1 et seq. and Title IV require in the application? of the National Parks Omnibus Man- 51.92 What are standard proformas? agement Act of 1998 (Public Law 105– 51.93 If the transaction includes more than 391). The purpose of concession con- one concession contract, how must required information be provided? tracts is to authorize persons (conces- 51.94 What information will the Director sioners) to provide visitor services in consider when deciding to approve a park areas. All concession contracts transaction? are to be consistent with the require- 51.95 Does the Director’s approval of an as- ments of this part. In accordance with signment or encumbrance include any section 403 of the 1998 Act, the Director representations of any nature? will utilize concession contracts to au- 51.96 May the Director amend or extend a thorize the provision of visitor services concession contract for the purpose of fa- in park areas, except as may otherwise cilitating a transaction? be authorized by law. For example, the 51.97 May the Director open to renegotiation or modify the terms of a concession Director may enter into commercial contract as a condition to the approval use authorizations under section 418 of of a transaction? the 1998 Act and may enter into agree- ments with non-profit organizations Subpart K—Information and Access to for the sale of interpretive materials Information and conduct of interpretive programs for a fee or charge in park areas. In ad- 51.98 What records must the concessioner dition, the Director may, as part of an keep and what access does the Director have to records? interpretive program agreement other- 51.99 What access to concessioner records wise authorized by law, authorize a will the Comptroller General have? non-profit organization to provide inci- 51.100 When will the Director make pro- dental visitor services that are nec- posals and evaluation documents pub- essary for the conduct of the interpre- licly available? tive program. Nothing in this part

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amends, supersedes, or otherwise af- contracts are not contracts within the fects any provision of the Alaska Na- meaning of 41 U.S.C. 601 et seq. (the tional Interest Lands Conservation Act Contract Disputes Act) and are not (16 U.S.C. 3101 et seq.) relating to rev- service or procurement contracts with- enue-producing visitor services. in the meaning of statutes, regulations or policies that apply only to federal § 51.2 What is the policy underlying concessions contracts? service contracts or other types of federal procurement actions. Concession It is the policy of the Congress and contracts will contain such terms and the Secretary that visitor services in conditions as are required by this part park areas may be provided only under or law and as are otherwise appropriate carefully controlled safeguards against in furtherance of the purposes of this unregulated and indiscriminate use so that visitation will not unduly impair part and the 1998 Act. park values and resources. Develop- A concessioner is an individual, cor- ment of visitor services in park areas poration, or other legally recognized will be limited to locations that are entity that duly holds a concession consistent to the highest practicable contract. degree with the preservation and con- Director means the Director of the servation of the resources and values of National Park Service (acting on be- the park area. It is also the policy of half of the Secretary), or an authorized the Congress and the Secretary of the representative of the Director, except Interior that development of visitor where a particular official is specifi- services in park areas must be limited cally identified in this part. In cir- to those as are necessary and appro- cumstances where this part calls for an priate for public use and enjoyment of appeal to the Director, the appeal shall the park area in which they are lo- be considered by an official of higher cated. authority than the official that made the disputed decision. Subpart B—General Definitions A franchise fee is the consideration paid to the Director by a concessioner § 51.3 How are terms defined in this part? for the privileges granted by a concession contract. To understand this part, you must Offeror means an individual, corpora- refer to these definitions, applicable in tion, or other legally recognized entity, the singular or the plural, whenever these terms are used in this part: including an existing concessioner, The 1965 Act means Public Law 89–249, that submits a proposal for a conces- commonly known as the National Park sion contract. If the entity that is to Service Concession Policies Act of 1965. be the concessioner is not formally in A 1965 Act concession contract is a con- existence as of the time of submission cession contract or permit entered into of a proposal, a proposal must dem- under the authority of the 1965 Act. onstrate that the individuals or organi- The 1998 Act means Title IV of Public zations that intend to establish the en- Law 105–391. tity that will become the concessioner The award of a concession contract is have the ability and are legally obliged the establishment of a legally binding to cause the entity to be a qualified concession contract. It occurs only person as defined in this part. In addi- when the Director and a selected offer- tion, if the entity that will be the con- or both fully execute a concession concessioner is not established at the time tract. of submission of a proposal, the pro- A concession contract (or contract) posal must contain assurances satisfac- means a binding written agreement be- tory to the Director that the entity tween the Director and a concessioner that will be the concessioner will be a entered under the authority of this qualified person as of the date of the part or the 1965 Act that authorizes the award of the contract and otherwise concessioner to provide certain visitor services within a park area under spec- have the ability to carry out the com- ified terms and conditions. Concession mitments made in the proposal.

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Possessory interest means an interest appropriate for public use and enjoy- in real property improvements as de- ment of a park area provided to park fined by the 1965 Act obtained by a con- area visitors for a fee or charge by a cessioner under a possessory interest person other than the Director. The fee concession contract. Possessory inter- or charge paid by the visitor may be di- est, for the purposes of this part, does rect or indirect as part of the provision not include any interest in property in of comprehensive visitor services (e.g., which no possessory interest, as de- when a lodging concessioner may pro- fined by the 1965 Act, exists. vide free transportation services to A possessory interest concession con- guests). Visitor services may include, tract means a 1965 Act concession con- but are not limited to, lodging, camp- tract that provides the concessioner a grounds, food service, merchandising, possessory interest. tours, recreational activities, guiding, A preferred offeror is a concessioner transportation, and equipment rental. that the Director determines is eligible Visitor services also include the sale of to exercise a right of preference to the interpretive materials or the conduct award of a qualified concession con- of interpretive programs for a fee or tract in accordance with this part. charge to visitors. A qualified concession contract is a new concession contract that the Di- Subpart C—Solicitation, Selection rector determines to be a qualified con- and Award Procedures cession contract for right of preference purposes. § 51.4 How will the Director invite the A qualified person is an individual, general public to apply for the corporation or other legally recognized award of a concession contract? entity that the Director determines (a) The Director must award all con- has the experience and financial ability cession contracts, except as otherwise to satisfactorily carry out the terms of expressly provided in this part, a concession contract. This experience through a public solicitation process. and financial ability includes, but is The public solicitation process begins not limited to, the ability to protect with the issuance of a prospectus. The and preserve the resources of the park prospectus will invite the general pub- area and the ability to provide satisfac- lic to submit proposals for the con- tory visitor services at reasonable tract. The prospectus will describe the rates to the public. terms and conditions of the concession A responsive proposal means a timely contract to be awarded and the proce- submitted proposal that is determined dures to be followed in the selection of by the Director as agreeing to all of the best proposal. the minimum requirements of the pro- (b) Except as provided under § 51.47 posed concession contract and pro- (which calls for a final administrative spectus and as having provided the in- decision on preferred offeror appeals formation required by the prospectus. prior to the selection of the best pro- A right of preference is the pref- posal) the terms, conditions and deter- erential right of renewal set forth in minations of the prospectus and the Section 403(7)(C) of the 1998 Act which terms and conditions of the proposed requires the Director to allow a pre- concession contract as described in the ferred offeror the opportunity to match prospectus, including, without limita- the terms and conditions of a com- tion, its minimum franchise fee, are peting responsive proposal that the Di- not final until the concession contract rector has determined to be the best is awarded. The Director will not issue proposal for a qualified concession con- a prospectus for a concession contract tract. A right of preference does not earlier than eighteen months prior to provide any rights of any nature to es- the expiration of a related existing tablish or negotiate the terms and con- concession contract. ditions of a concession contract to which a right of preference may apply. § 51.5 What information will the pro- Visitor services means accommoda- spectus include? tions, facilities and services deter- The prospectus must include the fol- mined by the Director as necessary and lowing information:

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(a) The minimum requirements of ken out by department for the three the concession contract. The minimum most recent years; franchise fees requirements of the concession con- charged under the current concession tract, include, but are not limited to contract for the three most recent the following: years; merchandise inventories of the (1) The minimum acceptable fran- current concessioner for the three most chise fee or other forms of consider- recent years; and the depreciable fixed ation to the Government; assets and net depreciable fixed assets (2) The minimum visitor services of the current concessioner; and that the concessioner is to be author- (g) Identification of a preferred offer- ized to provide; or for a qualified concession contract, (3) The minimum capital investment, if any, and, if a preferred offeror exists, if any, that the concessioner must make; a description of a right of preference to (4) The minimum measures that the the award of the concession contract. concessioner must take to ensure the § 51.6 Will a concession contract be de- protection, conservation, and preserva- veloped for a particular potential tion of the resources of the park area; offeror? and (5) Any other minimum requirements The terms and conditions of a conces- that the new contract may specify, in- sion contract must represent the re- cluding, as appropriate and without quirements of the Director in accord- limitation, measurable performance ance with the purposes of this part and standards; must not be developed to accommodate (b) The terms and conditions of a cur- the capabilities or limitations of any rent concession contract, if any, relat- potential offeror. The Director must ing to the visitor services to be pro- not provide a current concessioner or vided, including all fees and other other person any information as to the forms of compensation provided to the content of a proposed or issued pro- Director under such contract; spectus that is not available to the (c) A description of facilities and general public. services, if any, that the Director may provide to the concessioner under the § 51.7 How will information be pro- terms of the concession contract, in- vided to a potential offeror after cluding, but not limited to, public ac- the prospectus is issued? cess, utilities and buildings; Material information directly related (d) An estimate of the amount of any to the prospectus and the concession compensation due a current conces- contract (except when otherwise pub- sioner from a new concessioner under licly available) that the Director pro- the terms of an existing or prior concession contract; vides to any potential offeror prior to (e) A statement identifying each the submission of proposals must be principal selection factor for proposals, made available to all persons who have including subfactors, if any, and sec- requested a copy of the prospectus. ondary factors, if any, and the weight and relative importance of the prin- § 51.8 Where will the Director publish cipal and any secondary factors in the the notice of availability of the prospectus? selection decision; (f) Such other information related to The Director will publish notice of the proposed concession contract as is the availability of the prospectus at provided to the Director pursuant to a least once in the Commerce Business concession contract or is otherwise Daily or in a similar publication if the available to the Director, as the Direc- Commerce Business Daily ceases to be tor determines is necessary to allow for published. The Director may also pub- the submission of competitive pro- lish notices, if determined appropriate posals. Among other such necessary in- by the Director, electronically or in formation a prospectus will contain local or national newspapers or trade (when applicable) are the gross receipts magazines. of the current concession contract bro-

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§ 51.9 How do I get a copy of the pro- may include, as appropriate and with- spectus? out limitation, a reduced application The Director will make the pro- package, a shorter proposal submission spectus available upon request to all period, and a reduction of proposal in- interested persons. The Director may formation requirements. charge a reasonable fee for a prospectus, not to exceed printing, binding § 51.13 When will the Director determine if proposals are responsive? and mailing costs. The Director will determine if pro- § 51.10 How long will I have to submit posals are responsive or non-responsive my proposal? prior to or as of the date of selection of The Director will allow an appro- the best proposal. priate period for submission of proposals that is not less than 60 days un- § 51.14 What happens if no responsive less the Director determines that a proposals are submitted? shorter time is appropriate in the cir- If no responsive proposals are sub- cumstances of a particular solicitation. mitted, the Director may cancel the so- Proposals that are not timely sub- licitation, or, after cancellation, estab- mitted will not be considered by the lish new contract requirements and Director. issue a new prospectus.

§ 51.11 May the Director amend, ex- § 51.15 May I clarify, amend or supple- tend, or cancel a prospectus of so- ment my proposal after it is sub- licitation? mitted? The Director may amend a pro- (a) The Director may request from spectus or extend the submission date, any offeror who has submitted a timely or both, prior to and on the proposal proposal a written clarification of its due date. The Director may cancel a proposal. Clarification refers to mak- solicitation at any time prior to award ing clear any ambiguities that may of the concession contract if the Direc- have been contained in a proposal but tor determines in his discretion that does not include amendment or sup- this action is appropriate in the public plementation of a proposal. An offeror interest. No offeror or other person will may not amend or supplement a pro- obtain compensable or other legal posal after the submission date unless rights as a result of an amended, ex- requested by the Director to do so and tended, canceled, or resolicited solici- the Director provides all offerors that tation for a concession contract. submitted proposals a similar oppor- [79 FR 58263, Sept. 29, 2014] tunity to amend or supplement their proposals. Permitted amendments § 51.12 Are there any other additional must be limited to modifying par- procedures that I must follow to ticular aspects of proposals resulting apply for a concession contract? from a general failure of offerors to un- The Director may specify in a pro- derstand particular requirements of a spectus additional solicitation and/or prospectus or a general failure of selection procedures consistent with offerors to submit particular informa- the requirements of this part in the in- tion required by a prospectus. terest of enhancing competition. Such (b) A proposal may suggest changes additional procedures may include, but to the terms and conditions of a pro- are not limited to, issuance of a two- posed concession contract and still be phased prospectus—a qualifications considered as responsive so long as the phase and a proposal phase. The Direc- suggested changes are not conditions tor will incorporate simplified adminis- to acceptance of the terms and condi- trative requirements and procedures in tions of the proposed concession con- prospectuses for concession contracts tract. The fact that a proposal may that the Director considers are likely suggest changes to the proposed con- to be awarded to a sole proprietorship cession contract does not mean that or are likely to have annual gross re- the Director may accept those changes ceipts of less than $100,000. Such sim- without a resolicitation of the conces- plified requirements and procedures sion opportunity.

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§ 51.16 How will the Director evaluate (1) The responsiveness of the proposal proposals and select the best one? to the objectives, as described in the (a) The Director will apply the selec- prospectus, of protecting, conserving, tion factors set forth in § 51.17 by as- and preserving resources of the park sessing each timely proposal under area; each of the selection factors on the (2) The responsiveness of the proposal basis of a narrative explanation, dis- to the objectives, as described in the cussing any subfactors when applica- prospectus, of providing necessary and ble. For each selection factor, the Di- appropriate visitor services at reason- rector will assign a score that reflects able rates; the determined merits of the proposal (3) The experience and related back- under the applicable selection factor ground of the offeror, including the and in comparison to the other pro- past performance and expertise of the posals received, if any. The first four offeror in providing the same or simi- principal selection factors will be lar visitor services as those to be pro- scored from zero to five. The fifth se- vided under the concession contract; lection factor will be scored from zero (4) The financial capability of the of- to four (with a score of one for agreeing feror to carry out its proposal; and to the minimum franchise fee con- (5) The amount of the proposed min- tained in the prospectus). The sec- imum franchise fee, if any, and/or other ondary factor set forth in § 51.17(b)(1) forms of financial consideration to the will be scored from zero to three. Any Director. However, consideration of additional secondary selection factors revenue to the United States will be set forth in the prospectus will be subordinate to the objectives of pro- scored as specified in the prospectus tecting, conserving, and preserving re- provided that the aggregate possible sources of the park area and of pro- point score for all additional secondary viding necessary and appropriate vis- selection factors may not exceed a itor services to the public at reason- total of three. able rates. (b) The Director will then assign a (b) The secondary selection factors cumulative point score to each pro- are: posal based on the assigned score for (1) The quality of the offeror’s pro- each selection factor. posal to conduct its operations in a (c) The responsive proposal with the manner that furthers the protection, highest cumulative point score will be conservation and preservation of park selected by the Director as the best area and other resources through envi- proposal. If two or more responsive ronmental management programs and proposals receive the same highest activities, including, without limita- point score, the Director will select as tion, energy conservation, waste reduc- the best proposal (from among the re- tion, and recycling. A prospectus may sponsive proposals with the same high- exclude this secondary factor if the est point score), the responsive pro- prospectus solicits proposals for a con- posal that the Director determines on cession contract that is anticipated to the basis of a narrative explanation have annual gross receipts of less than will, on an overall basis, best achieve $100,000 and the activities that will be the purposes of this part. Consideration conducted under the contract are de- of revenue to the United States in this termined by the Director as likely to determination and in scoring proposals have only limited impacts on the re- under principal selection factor five sources of the park area; and will be subordinate to the objectives of (2) Any other selection factors the protecting, conserving, and preserving Director may adopt in furtherance of the resources of the park area and of the purposes of this part, including providing necessary and appropriate where appropriate and otherwise per- visitor services to the public at reason- mitted by law, the extent to which a able rates. proposal calls for the employment of Indians (including Native Alaskans) § 51.17 What are the selection factors? and/or involvement of businesses owned (a) The five principal selection fac- by Indians, Indian tribes, Native Alas- tors are: kans, or minority or women-owned

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businesses in operations under the pro- § 51.22 When may the Director award posed concession contract. the concession contract? (c) A prospectus may include subfac- Before awarding a concession con- tors under each of the principal and tract with anticipated annual gross re- secondary factors to describe specific ceipts in excess of $5,000,000 or of more elements of the selection factor. than 10 years in duration, the Director must submit the concession contract § 51.18 When must the Director reject to the Committee on Natural Re- a proposal? sources of the House of Representatives The Director must reject any pro- and the Committee on Energy and Nat- posal received, regardless of the fran- ural Resources of the Senate. The Di- chise fee offered, if the Director makes rector must not award any such con- any of the following determinations: cession contract until 60 days after the the offeror is not a qualified person as submission. Award of these contracts defined in this part; The offeror is not may not be made without the Direc- likely to provide satisfactory service; tor’s written approval. The Director the proposal is not a responsive pro- may not delegate this approval except posal as defined in this part; or, the to a Deputy Director or an Associate proposal is not responsive to the objec- Director. The Director may award a tives of protecting and preserving the concession contract that is not subject to these or other special award require- resources of the park area and of pro- ments at any time after selection of viding necessary and appropriate serv- the best proposal and execution of the ices to the public at reasonable rates. concession contract by the offeror. § 51.19 Must the Director award the [65 FR 20668, Apr. 17, 2000, as amended at 79 concession contract that is set forth FR 58263, Sept. 29, 2014] in the prospectus? Except for incorporating into the Subpart D—Non-Competitive concession contract appropriate ele- Award of Concession Contracts ments of the best proposal, the Direc- tor must not award a concession con- § 51.23 May the Director extend an ex- tract which materially amends or does isting concession contract without a public solicitation? not incorporate the terms and conditions of the concession contract as set Notwithstanding the public solicita- forth in the prospectus. tion requirements of this part, the Di- rector may award non-competitively § 51.20 Does this part limit the author- an extension or extensions of an exist- ity of the Director? ing concession contract to the current concessioner for additional terms not Nothing in this part may be con- to exceed three years in the aggregate, strued as limiting the authority of the e.g., the Director may award one exten- Director at any time to determine sion with a three year term, two con- whether to solicit or award a conces- secutive extensions, one with a two sion contract, to cancel a solicitation, year term and one with a one year or to terminate a concession contract term, or three consecutive extensions in accordance with its terms. with a term of one year each. The Di- rector may award such extensions only § 51.21 When must the selected offeror if the Director determines that the ex- execute the concession contract? tension is necessary to avoid interrup- The selected offeror must execute the tion of visitor services. Before deter- concession contract promptly after se- mining to award such a contract exten- lection of the best proposal and within sion, the Director must take all rea- the time established by the Director. If sonable and appropriate steps to con- the selected offeror fails to execute the sider alternatives to avoid an interrup- concession contract in this period, the tion of visitor services. Further, the Director may select another responsive Director must publish notice in the proposal or may cancel the selection FEDERAL REGISTER of the proposed ex- and resolicit the concession contract. tension at least 30 days in advance of

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the award of the extension (except in temporary concession contract under emergency situations). paragraph (a) of this section.

§ 51.24 May the Director award a tem- [79 FR 58263, Sept. 29, 2014] porary concession contract without a public solicitation? § 51.25 Are there any other circumstances in which the Director (a) Notwithstanding the public solici- may award a concession contract tation requirements of this part, the without public solicitation? Director may non-competitively award Notwithstanding the public solicita- a temporary concession contract or tion requirements of this part, the Di- contracts for consecutive terms not to rector may award a concession con- exceed three years in the aggregate— tract non-competitively to any quali- e.g., the Director may award one tem- fied person if the Director determines porary contract with a three year both that such an award is otherwise term; two consecutive temporary con- consistent with the requirements of tracts, one with a two year term and this part and that extraordinary cir- one with a one year term; or three con- cumstances exist under which compel- secutive temporary contracts with a ling and equitable considerations re- term of one year each—to any qualified quire the award of the concession con- person for the conduct of particular tract to a particular qualified person in visitor services in a park area if the Di- the public interest. Indisputable equi- rector determines that the award is table considerations must be the deter- necessary to avoid interruption of vis- minant of such circumstances. The Di- itor services. Before determining to rector must publish a notice of his in- award a temporary concession con- tention to award a concession contract tract, the Director must take all rea- to a specified person under these cir- sonable and appropriate steps to con- cumstances and the reasons for the sider alternatives to avoid an interrup- proposed award in the FEDERAL REG- tion of visitor services. Further, the Director must publish notice in the ISTER at least 60 days before the concession contract is awarded. In addi- FEDERAL REGISTER of the proposed temporary concession contract at least tion, the Director also must notify the 30 days in advance of its award (except Committee on Energy and Natural Re- in emergency situations). A temporary sources of the Senate and the Com- concession contract may not be ex- mittee on Resources of the House of tended. A temporary concession con- Representatives at least 60 days before tract may be awarded to continue vis- the contract is awarded. The Director itor services that were provided under must personally approve any such an extended concession contract pursu- award and may only do so with the ant to the terms and conditions in this prior written approval of the Sec- paragraph. A temporary concession retary. contract awarded under the authority of the prior sentence will be considered Subpart E—Right of Preference to as a contract extension for purposes of a New Concession Contract determining the existence of a preferred offeror under § 51.44. § 51.26 What solicitation, selection and (b) [Reserved] award procedures apply when a (c) A concessioner holding a tem- preferred offeror exists? porary concession contract will not be The solicitation, selection and award eligible for a right of preference to a procedures described in this part will qualified concession contract that re- apply to the solicitation, selection and places a temporary contract unless the award of contracts for which a pre- concessioner holding the temporary ferred offeror exists, except as modified concession contract was determined or by this subpart, subpart F and other was eligible to be determined a pre- sections of this part related to preferred offeror under an extended con- ferred offerors and/or a right of pref- cession contract that was replaced by a erence.

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§ 51.27 Who is a preferred offeror and the offeror submitting the best respon- what are a preferred offeror’s sive proposal. rights to the award of a new concession contract? § 51.32 What is the process if the Di- (a) A preferred offeror is a conces- rector determines that the best responsive proposal was not sub- sioner that the Director has deter- mitted by a preferred offeror? mined is eligible to exercise a right of preference to the award of a qualified If the Director determines that a pro- new concession contract in accordance posal other than the responsive pro- with this part. posal submitted by a preferred offeror (b) A right of preference is the right is the best proposal submitted for a of a preferred offeror, if it submits a re- qualified concession contract, then the sponsive proposal for a qualified con- Director must advise the preferred of- cession contract, to match in accord- feror of the better terms and condi- ance with the requirements of this part tions of the best proposal and permit the terms and conditions of a com- the preferred offeror to amend its pro- peting proposal that the Director has posal to match them. An amended pro- determined to be the best responsive posal must match the better terms and proposal. conditions of the best proposal as determined by the Director. If the pre- § 51.28 When will the Director deter- ferred offeror duly amends its proposal mine whether a concessioner is a within the time period allowed by the preferred offeror? Director, and the Director determines Subject to §§ 51.46 and 51.47, the Di- that the amended proposal matches the rector will determine whether a con- better terms and conditions of the best cessioner is a preferred offeror in ac- proposal, then the Director must select cordance with this part no later than the preferred offeror for award of the the date of issuance of a prospectus for contract upon the amended terms and the applicable new concession con- conditions, subject to other applicable tract. requirements of this part.

§ 51.29 How will I know when a pre- § 51.33 What if a preferred offeror does ferred offeror exists? not timely amend its proposal to meet the terms and conditions of If the Director has determined that a the best proposal? preferred offeror exists for a qualified concession contract under this part, If a preferred offeror does not amend the Director will identify the preferred its proposal to meet the terms and con- offeror in the applicable prospectus and ditions of the best proposal within the describe the preferred offeror’s right of time period allowed by the Director, preference. the Director will select for award of the contract the offeror that submitted § 51.30 What must a preferred offeror the best responsive proposal. do before it may exercise a right of preference? § 51.34 What will the Director do if a A preferred offeror must submit a re- selected preferred offeror does not sponsive proposal pursuant to the timely execute the new concession contract? terms of an applicable prospectus for a qualified concession contract if the If a selected preferred offeror fails to preferred offeror wishes to exercise a execute the concession contract in the right of preference. time period specified by the Director, the Director either will select for § 51.31 What happens if a preferred of- award of the concession contract the feror does not submit a responsive offeror that submitted the best respon- proposal? sive proposal, or will cancel the solici- If a preferred offeror fails to submit a tation and may resolicit the concession responsive proposal, the offeror may contract but only without recognition not exercise a right of preference. The of a preferred offeror or right of pref- concession contract will be awarded to erence.

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§ 51.35 What happens to a right of from those authorized under the pre- preference if the Director receives vious concession contract; and either no responsive proposals? (b) The new concession contract that If the Director receives no responsive is to replace the previous concession proposals, including a responsive pro- contract is estimated to result in, as posal from a preferred offeror, in re- determined by the Director, annual sponse to a prospectus for a qualified gross receipts of less than $500,000 in concession contract for which a pre- the first 12 months of its term; or ferred offeror exists, the Director must (c) The new concession contract is an cancel the solicitation and may re- outfitter and guide concession contract as described in this part. solicit the concession contract or take other appropriate action in accordance § 51.38 How will the Director deter- with this part. No right of preference mine that a concession contract is will apply to a concession contract re- an outfitter and guide concession solicited under this section unless the contract? contract is resolicited upon terms and The Director will determine that a conditions materially more favorable concession contract is an outfitter and to offerors than those contained in the guide concession contract if the Direc- original contract. tor determines that: (a) The concession contract solely Subpart F—Determining a authorizes or requires (except for park Preferred Offeror area access purposes) the conduct of specialized outdoor recreation guide § 51.36 What conditions must be met services in the backcountry of a park before the Director determines that area; and a concessioner is a preferred offer- (b) The conduct of operations under or? the concession contract requires em- A concessioner is a preferred offeror ployment of specially trained and expe- if the Director determines that the fol- rienced guides to accompany park visi- lowing conditions are met: tors who otherwise may not have the (a) The concessioner was a satisfac- skills and equipment to engage in the tory concessioner during the term of activity and to provide a safe and en- its concession contract as determined joyable experience for these visitors. under this part; § 51.39 What are some examples of out- (b) The applicable new contract is a fitter and guide concession con- qualified concession contract as deter- tracts? mined under this part; and Outfitter and guide concession con- (c) If applicable, the concessioner’s tracts may include, but are not limited previous concession contract was an to, concession contracts which solely outfitter and guide concession contract authorize or require the guided conduct as determined under this part. of river running, hunting (where otherwise lawful in a park area), fishing, § 51.37 How will the Director deter- horseback, camping, and mountain- mine that a new concession contract is a qualified concession con- eering activities in the backcountry of tract? a park area. A new concession contract is a quali- § 51.40 What are some factors to be fied concession contract if the Director considered in determining that out- determines that: fitter and guide operations are con- (a) The new concession contract pro- ducted in the backcountry? vides for the continuation of the vis- Determinations as to whether out- itor services authorized under a pre- fitter and guide operations are con- vious concession contract. The visitor ducted in the backcountry of a park services to be continued under the new area will be made on a park-by-park contract may be expanded or dimin- basis, taking into account the park ished in scope but, for purposes of a area’s particular geographic cir- qualified concession contract, may not cumstances. Factors that generally materially differ in nature and type may indicate that outfitter and guide

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operations are conducted in the § 51.44 How will the Director deter- backcountry of a park area include, mine if a concessioner was satisfac- without limitation, the fact that: tory for purposes of a right of pref- (a) The operations occur in areas re- erence? mote from roads and developed areas; To be a satisfactory concessioner for (b) The operations are conducted the purposes of a right of preference, within a designated natural area of a the Director must determine that the park area; concessioner operated satisfactorily on (c) The operations occur in areas an overall basis during the term of its where search and rescue support is not applicable concession contract, includ- readily available; and ing extensions of the contract. The Di- (d) All or a substantial portion of the rector will base this determination in consideration of annual evaluations operations occur in designated or pro- made by the Director of the conces- posed wilderness areas. sioner’s performance under the terms [65 FR 20668, Apr. 17, 2000; 65 FR 54155, Sept. of the applicable concession contract 7, 2000] and other relevant facts and circumstances. The Director must deter- § 51.41 If the concession contract mine that a concessioner did not oper- grants a compensable interest in ate satisfactorily on an overall basis real property improvements, will during the term of a concession con- the Director find that the conces- tract if the annual evaluations of the sion contract is an outfitter and concessioner made subsequent to May guide concession contract? 17, 2000 are less than satisfactory for The Director will find that a conces- any two or more years of operation sion contract is not an outfitter and under the concession contract. guide contract if the contract grants any compensable interest in real prop- § 51.45 Will a concessioner that has op- erty improvements on lands owned by erated for less than the entire term the United States within a park area. of a concession contract be considered a satisfactory operator? § 51.42 Are there exceptions to this The Director will determine that a compensable interest prohibition? concessioner has operated satisfac- Two exceptions to this compensable torily on an overall basis during the interest prohibition exist: term of a concession contract only if the concessioner (including a new con- (a) The prohibition will not apply to cessioner resulting from an assignment real property improvements lawfully as described in this part, including, constructed by a concessioner with the without limit, an assignment of a con- written approval of the Director in ac- trolling interest in a concessioner as cordance with the express terms of a defined in this part) has or will have 1965 Act concession contract; and operated for more than two years (b) The prohibition will not apply to under a concession contract with a real property improvements con- term of more than five years or for one structed and owned in fee simple by a year under a concession contract with concessioner or owned in fee simple by a term of five years or less. For pur- a concessioner’s predecessor before the poses of this section, a new conces- land on which they were constructed sioner’s first day of operation under an was included within the boundaries of assigned concession contract (or as a the applicable park area. new concessioner after approval of an assignment of a controlling interest in § 51.43 Who will make the determina- a concessioner) will be the day the Di- tion that a concession contract is rector approves the assignment pursu- an outfitter and guide contract? ant to this part. If the Director deter- Only a Deputy Director or an Asso- mines that an assignment was com- ciate Director will make the deter- pelled by circumstances beyond the mination that a concession contract is control of the assigning concessioner, or is not an outfitter and guide con- the Director may make an exception to tract. the requirements of this section.

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§ 51.46 May the Director determine termines that good cause for an exten- that a concessioner has not oper- sion exists. ated satisfactorily after a pro- (b) The appeal provided by this sec- spectus is issued? tion will not apply to determinations The Director may determine that a that a concessioner is not a preferred concessioner has not operated satisfac- offeror as a consequence of two or more torily on an overall basis during the less than satisfactory annual evalua- term of a current concession contract, tions as described in this part as the and therefore is not a preferred offeror, concessioner is given an opportunity to after a prospectus for a new contract appeal those evaluations after they are has been issued and prior to the selec- made in accordance with applicable ad- tion of the best proposal submitted in response to a prospectus. In cir- ministrative guidelines. cumstances where the usual time of an (c) The Director must consider an ap- annual evaluation of a concessioner’s peal under this section personally or performance may not occur until after must authorize a Deputy Director or the selection of the best proposal sub- Associate Director to consider the ap- mitted in response to a prospectus, the peal. The deciding official must pre- Director will make an annual perform- pare a written decision on the appeal, ance evaluation based on a shortened taking into account the content of the operations period prior to the selection appeal, other written information of the best proposal. Such shorter oper- available, and the requirements of this ations period, however, must encom- part. The written decision on the ap- pass at least 6 months of operations peal must be issued by the date of se- from the previous annual performance lection of the best proposal submitted evaluation. In the event the conces- in response to a prospectus. If the ap- sioner receives a second less than satis- peal results in a concessioner being de- factory annual evaluation (including, termined a preferred offeror, then the without limitation, one based on a concessioner will have a right of pref- shortened operations period), the pro- erence to the qualified concession con- spectus must be amended to delete a tract as described in and subject to the right of preference or canceled and re- conditions of this part, including, but issued without recognition of a right of not limited to, the obligation to sub- preference to the new concession con- mit a responsive proposal pursuant to tract. the terms of the related prospectus. If [65 FR 20668, Apr. 17, 2000; 65 FR 54155, Sept. the appeal results in a determination 7, 2000] that a concessioner is not a preferred § 51.47 How does a person appeal a de- offeror, no right of preference will cision of the Director that a conces- apply to the award of the related con- sioner is or is not a preferred offer- cession contract and the award will be or? made in accordance with the require- (a) Except as stated in paragraph (b) ments of this part. of this section, any person may appeal (d) No person will be considered as to the Director a determination that a having exhausted administrative rem- concessioner is or is not a preferred of- edies with respect to a determination feror for the purposes of a right of pref- by the Director that a concessioner is erence in renewal, including, without or is not a preferred offeror until the limitation, whether the applicable new Director issues a written decision in re- concession contract is or is not a quali- sponse to an appeal submitted pursu- fied concession contract as described in ant to this section, or, where applica- this part. This appeal must specify the ble, pursuant to an appeal provided by grounds for the appeal and be received the administrative guidelines described by the Director in writing no later in paragraph (b) of this section. The de- than 30 days after the date of the deter- cision of the Director is final agency mination. If applicable, the Director action. may extend the submission date for an appeal under this section upon request by the concessioner if the Director de-

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§ 51.48 What happens to a right of Arbitration means binding arbitration preference in the event of termi- conducted by an arbitration panel. All nation of a concession contract for arbitration proceedings conducted unsatisfactory performance or under the authority of this subpart or other breach? subpart H of this part will utilize the Nothing in this part will limit the following procedures unless otherwise right of the Director to terminate a agreed by the concessioner and the Di- concession contract pursuant to its rector. One member of the arbitration terms at any time for less than satis- panel will be selected by the conces- factory performance or otherwise. If a sioner, one member will be selected by concession contract is terminated for the Director, and the third (neutral) less than satisfactory performance or member will be selected by the two other breach, the terminated conces- party-appointed members. The neutral sioner, even if otherwise qualified, will arbiter must be a licensed real estate not be eligible to be a preferred offeror. The fact that the Director may not appraiser. The expenses of the neutral have terminated a concession contract arbiter and other associated common for less than satisfactory performance costs of the arbitration will be borne or other breach will not limit the au- equally by the concessioner and the Di- thority of the Director to determine rector. The arbitration panel will adopt that a concessioner did not operate sat- procedures that treat each party equal- isfactorily on an overall basis during ly, give each party the opportunity to the term of a concession contract. be heard, and give each party a fair opportunity to present its case. Adjudica- § 51.49 May the Director grant a right tive procedures are not encouraged but of preference except in accordance may be adopted by the panel if deter- with this part? mined necessary in the circumstances The Director may not grant a conces- of the dispute. Determinations must be sioner or any other person a right of made by a majority of the members of preference or any other form of entitle- the panel and will be binding on the ment of any nature to a new concession concessioner and the Director. contract, except in accordance with A capital improvement is a structure, this part or in accordance with 36 CFR fixture, or non-removable equipment part 13. provided by a concessioner pursuant to § 51.50 Does the existence of a pre- the terms of a concession contract and ferred offeror limit the authority of located on lands of the United States the Director to establish the terms within a park area. A capital improve- of a concession contract? ment does not include any interest in The existence of a preferred offeror land. Additionally, a capital improve- does not limit the authority of the Di- ment does not include any interest in rector to establish, in accordance with personal property of any kind includ- this part, the terms and conditions of a ing, but not limited to, vehicles, boats, new concession contract, including, but barges, trailers, or other objects, re- not limited to, terms and conditions gardless of size, unless an item of per- that modify the terms and conditions sonal property becomes a fixture as de- of a prior concession contract. fined in this part. Concession contracts may further describe, consistent with Subpart G—Leasehold Surrender the limitations of this part and the 1998 Interest Act, the nature and type of specific capital improvements in which a con- § 51.51 What special terms must I cessioner may obtain a leasehold sur- know to understand leasehold surrender interest? render interest. Construction cost of a capital improve- To understand leasehold surrender ment means the total of the incurred interest, you must refer to these defini- eligible direct and indirect costs nec- tions, applicable in the singular or the essary for constructing or installing plural, whenever these terms are used in this part:

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the capital improvement that are cap- vailing in the locality of the project): italized by the concessioner in accord- architectural and engineering fees for ance with Generally Accepted Account- plans, plan checks; surveys to establish ing Principals (GAAP). The term ‘‘con- building lines and grades; environ- struct’’ or ‘‘construction’’ as used in mental studies; if the project is fi- this part also means ‘‘install’’ or ‘‘in- nanced, the points, fees or service stallation’’ of fixtures where applica- charges and interest on construction ble. loans; all risk insurance expenses and Consumer Price Index means the na- ad valorem taxes during construction. tional ‘‘Consumer Price Index—All The actual capitalized administrative Urban Consumers’’ published by the expenses (in amounts no higher than Department of Labor. If this index those prevailing in the locality of the ceases to be published, the Director project) of the concessioner for direct, will designate another regularly pub- on-site construction inspection are eli- lished cost-of-living index approxi- gible indirect costs. Other administra- mating the national Consumer Price tive expenses of the concessioner are Index. not eligible indirect costs. Depreciation means the loss of value Fixtures and non-removable equipment in a capital improvement as evidenced are manufactured items of personal by the condition and prospective serv- property of independent form and util- iceability of the capital improvement ity necessary for the basic functioning in comparison with a new unit of like of a structure that are affixed to and kind. considered to be part of the structure Eligible direct costs means the sum of such that title is with the Director as all incurred capitalized costs (in real property once installed. Fixtures amounts no higher than those pre- and non-removable equipment do not vailing in the locality of the project), include building materials (e.g., wall- that are necessary both for the con- board, flooring, concrete, cinder struction of a capital improvement and blocks, steel beams, studs, window are typically elements of a construc- frames, windows, rafters, roofing, fram- tion contract. Eligible direct costs may ing, siding, lumber, insulation, wall- include, without limitation, the costs paper, paint, etc.). Because of their spe- of (if capitalized in accordance with cial circumstances, floating docks (but GAAP and in amounts no higher than not other types of floating property) those prevailing in the locality of the constructed by a concessioner pursuant project): building permits; materials, to the terms of a leasehold surrender products and equipment used in con- interest concession contract are construction; labor used in construction; sidered to be non-removable equipment security during construction; contrac- for leasehold surrender interest pur- tor’s shack and temporary fencing; ma- poses only. Except as otherwise indi- terial storage facilities; power line in- cated in this part, the term ‘‘fixture’’ stallation and utility costs during con- as used in this part includes the term struction; performance bonds; and con- ‘‘non-removable equipment.’’ tractor’s (and subcontractor’s) profit Leasehold surrender interest solely and overhead (including job super- means a right to payment in accord- vision, worker’s compensation insurance with this part for related capital ance and fire, liability, and unemploy- improvements that a concessioner ment insurance). makes or provides within a park area Eligible indirect costs means, except as on lands owned by the United States provided in the last sentence of this pursuant to this part and under the definition, the sum of all other in- terms and conditions of an applicable curred capitalized costs (in amounts no concession contract. The existence of a higher than those prevailing in the lo- leasehold surrender interest does not cality of the project) necessary for the give the concessioner, or any other per- construction of a capital improvement. son, any right to conduct business in a Eligible indirect costs may include, park area, to utilize the related capital without limitation, the costs of (if cap- improvements, or to prevent the Direc- italized in accordance with GAAP and tor or another person from utilizing in amounts no higher than those pre- the related capital improvements. The

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existence of a leasehold surrender in- Real property improvements means real terest does not include any interest in property other than land, including, the land on which the related capital but not limited to, capital improve- improvements are located. ments. Leasehold surrender interest concession Related capital improvement or related contract means a concession contract fixture means a capital improvement in that provides for leasehold surrender which a concessioner has a leasehold interest in capital improvements. surrender interest. Leasehold surrender interest value Replacement cost means the estimated means the amount of compensation a cost to reconstruct, at current prices, concessioner is entitled to be paid for a an existing structure with utility leasehold surrender interest in capital equivalent to the existing structure, improvements in accordance with this using modern materials and current part. Unless otherwise provided by the standards, design and layout. terms of a leasehold surrender interest Structure means a building, dock, or concession contract under the author- similar edifice affixed to the land so as ity of section 405(a)(4) of the 1998 Act, to be part of the real estate. A struc- leasehold surrender interest value in ture may include both constructed in- existing capital improvements is an frastructure (e.g., water, power and amount equal to: sewer lines) and constructed site im- (1) The initial construction cost of provements (e.g., paved roads, retain- the related capital improvement; ing walls, sidewalks, paved driveways, paved parking areas) that are perma- (2) Adjusted by (increased or de- nently affixed to the land so as to be creased) the same percentage increase part of the real estate and that are in or decrease as the percentage increase direct support of the use of a building, or decrease in the Consumer Price dock, or similar edifice. Landscaping Index from the date the Director ap- that is integral to the construction of proves the substantial completion of a structure is considered as part of a the construction of the related capital structure. Interior furnishings that are improvement to the date of payment of not fixtures are not part of a structure. the leasehold surrender interest value; Substantial completion of a capital im- (3) Less depreciation of the related provement means the condition of a cap- capital improvement on the basis of its ital improvement construction project condition as of the date of termination when the project is substantially com- or expiration of the applicable lease- plete and ready for use and/or occu- hold surrender interest concession con- pancy. tract, or, if applicable, the date on which a concessioner ceases to utilize a § 51.52 How do I obtain a leasehold related capital improvement (e.g., surrender interest? where the related capital improvement Leasehold surrender interest conces- is taken out of service by the Director sion contracts will contain appropriate pursuant to the terms of a concession leasehold surrender interest terms and contract). conditions consistent with this part. A Major rehabilitation means a planned, concessioner will obtain leasehold sur- comprehensive rehabilitation of an ex- render interest in capital improve- isting structure that: ments constructed in accordance with (1) The Director approves in advance this part and the leasehold surrender and determines is completed within 18 interest terms and conditions of an ap- months from start of the rehabilitation plicable leasehold surrender interest work (unless a longer period of time is concession contract. approved by the Director in special circumstances); and § 51.53 When may the Director author- (2) The construction cost of which ex- ize the construction of a capital im- ceeds fifty percent of the pre-rehabili- provement? tation value of the structure. The Director may only authorize or Pre-rehabilitation value of an existing require a concessioner to construct structure means the replacement cost capital improvements on park lands in of the structure less depreciation. accordance with this part and under

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the terms and conditions of a leasehold costs as defined in this part. Invoices surrender interest concession contract for additional construction costs of ele- for the conduct by the concessioner of ments of the project that were not visitor services, including, without completed as of the date of substantial limitation, the construction of capital completion may subsequently be sub- improvements necessary for the con- mitted to the Director for inclusion in duct of visitor services. the project’s construction cost.

§ 51.54 What must a concessioner do § 51.56 How will the construction cost before beginning to construct a cap- for purposes of leasehold surrender ital improvement? interest value be determined? Before beginning to construct any After receiving the detailed construc- capital improvement, the concessioner tion report (and certification, if re- must obtain written approval from the quested), from the concessioner, the Director in accordance with the terms Director will review the report, certifi- of its leasehold surrender interest concession contract. The request for ap- cation and other information as appro- proval must include appropriate plans priate to determine that the reported and specifications for the capital im- construction cost is consistent with provement and any other information the construction cost approved by the that the Director may specify. The re- Director in advance of the construction quest must also include an estimate of and that all costs included in the con- the total construction cost of the cap- struction cost are eligible direct or in- ital improvement. The estimate of the direct costs as defined in this part. The total construction cost must specify all construction cost determined by the elements of the cost in such detail as is Director will be the final determina- necessary to permit the Director to de- tion of construction cost for purposes termine that they are elements of con- of the leasehold surrender interest struction cost as defined in this part. value in the related capital improve- (The approval requirements of this and ment unless the concessioner requests other sections of this part also apply to arbitration of the construction cost any change orders to a capital im- under § 51.57. The Director may at any provement project and to any additions time review a construction cost deter- to a structure or replacement of fix- mination (subject to arbitration under tures as described in this part.) § 51.57) if the Director has reason to be- § 51.55 What must a concessioner do lieve that it was based on false, mis- after substantial completion of the leading or incomplete information. capital improvement? [66 FR 35083, July 3, 2001] Upon substantial completion of the construction of a capital improvement § 51.57 How does a concessioner re- in which the concessioner is to obtain quest arbitration of the construc- a leasehold surrender interest, the con- tion cost of a capital improvement? cessioner must provide the Director a If a concessioner requests arbitration detailed construction report. The con- of the construction cost of a capital struction report must be supported by improvement determined by the Direc- actual invoices of the capital improve- tor, the request must be made in writ- ment’s construction cost together ing to the Director within 3 months of with, if requested by the Director, a the date of the Director’s determina- written certification from a certified tion of construction cost under § 51.56. public accountant. The construction The arbitration procedures are de- report must document, and any re- scribed in § 51.51. The decision of the ar- quested certification by the certified public accountant must certify, that bitration panel as to the construction all components of the construction cost of the capital improvement will be cost were incurred and capitalized by binding on the concessioner and the Di- the concessioner in accordance with rector. GAAP, and that all components are eli- [66 FR 35083, July 3, 2001] gible direct or indirect construction

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§ 51.58 What actions may or must the otherwise in these circumstances ex- concessioner take with respect to a cept as provided by this part. leasehold surrender interest? The concessioner: § 51.61 How is an existing concessioner who is not awarded a new conces- (a) May encumber a leasehold sur- sion contract paid for a leasehold render interest in accordance with this surrender interest? part, but only for the purposes specified in this part; (a) When a concessioner is not awarded a new concession contract after ex- (b) Where applicable, must transfer piration or termination of a leasehold in accordance with this part its lease- surrender interest concession contract, hold surrender interest in connection or, the concessioner, prior to such ter- with any assignment, termination or mination or expiration, ceases to uti- expiration of the concession contract; lize under the terms of a concession and contract capital improvements in (c) May relinquish or waive a lease- which the concessioner has a leasehold hold surrender interest. surrender interest, the concessioner will be entitled to be paid its leasehold § 51.59 Will a leasehold surrender interest be extinguished by expira- surrender interest value in the related tion or termination of a leasehold capital improvements. The leasehold surrender interest concession con- surrender interest will not be trans- tract or may it be taken for public ferred until payment of the leasehold use? surrender interest value. The date for A leasehold surrender interest may payment of the leasehold surrender in- not be extinguished by the expiration terest value, except in special cir- or termination of a concession contract cumstances beyond the Director’s con- and a leasehold surrender interest may trol, will be the date of expiration or not be taken for public use except on termination of the leasehold surrender payment of just compensation. Pay- interest contract, or the date the con- ment of leasehold surrender interest cessioner ceases to utilize related cap- value pursuant to this part will con- ital improvements under the terms of a stitute the payment of just compensa- concession contract. Depreciation of tion for leasehold surrender interest the related capital improvements will within the meaning of this part and for be established as of the date of expira- all other purposes. tion or termination of the concession contract, or, if applicable, the date the § 51.60 How will a new concession con- concessioner ceases to utilize the cap- tract awarded to an existing con- ital improvements under the terms of a cessioner treat a leasehold sur- concession contract. render interest obtained under a (b) In the event that extraordinary prior concession contract? circumstances beyond the control of When a concessioner under a lease- the Director prevent the Director from hold surrender interest concession con- making the leasehold surrender inter- tract is awarded a new concession con- est value payment as of the date of ex- tract by the Director, and the new con- piration or termination of the lease- cession contract continues a leasehold hold surrender interest concession con- surrender interest in related capital tract, or, as of the date a concessioner improvements, then the concessioner’s ceases to utilize related capital im- leasehold surrender interest value (es- provements under the terms of a con- tablished as of the date of expiration or cession contract, the payment when termination of its prior concession con- made will include interest on the tract) in the related capital improve- amount that was due on the date of ex- ments will be continued as the initial piration or termination of the conces- value (instead of initial construction sion contract or cessation of use for cost) of the concessioner’s leasehold the period after the payment was due surrender interest under the terms of until payment is made (in addition to the new concession contract. No com- the inclusion of a continuing Consumer pensation will be due the concessioner Price Index adjustment until the date for its leasehold surrender interest or payment is made). The rate of interest

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will be the applicable rate of interest hold surrender interest contract. In- established by law for overdue obliga- stead of initial construction cost, the tions of the United States. The pay- initial value of such leasehold sur- ment for a leasehold surrender interest render interest will be the leasehold value will be made within one year surrender interest value that the new after the expiration or termination of concessioner was required to pay the the concession contract or the ces- prior concessioner. sation of use of related capital improvements under the terms of a con- § 51.64 May the concessioner gain ad- cession contract. ditional leasehold surrender interest by undertaking a major reha- § 51.62 What is the process to deter- bilitation or adding to a structure mine the leasehold surrender inter- in which the concessioner has a est value when the concessioner leasehold surrender interest? does not seek or is not awarded a new concession contract? A concessioner that, with the written Leasehold surrender interest conces- approval of the Director, undertakes a sion contracts must contain provisions major rehabilitation or adds a new under which the Director and the con- structure (e.g., a new wing to an exist- cessioner will seek to agree in advance ing building or an extension of an ex- of the expiration or other termination isting sidewalk) to an existing struc- of the concession contract as to what ture in which the concessioner has a the concessioner’s leasehold surrender leasehold surrender interest, will in- interest value will be on a unit-by-unit crease its leasehold surrender interest basis as of the date of expiration or ter- in the related structure, effective as of mination of the concession contract. In the date of substantial completion of the event that agreement cannot be the major rehabilitation or new struc- reached, the provisions of the leasehold ture, by the construction cost of the surrender interest concession contract major rehabilitation or new structure. must provide for the Director to make The Consumer Price Index adjustment a final determination of leasehold surrender interest value unless binding ar- for leasehold surrender interest value bitration as to the value is requested purposes will apply to the construction by the concessioner. The arbitration cost as of the date of substantial com- procedures are described in § 51.51. A pletion of the major rehabilitation or prior decision as to the construction new structure. Approvals for major re- cost of capital improvements made by habilitations and additions to struc- the Director or by an arbitration panel tures are subject to the same require- in accordance with this part are final ments and conditions applicable to new and not subject to further arbitration. construction as described in this part. [66 FR 35083, July 3, 2001] § 51.65 May the concessioner gain ad- § 51.63 When a new concessioner pays ditional leasehold surrender inter- a prior concessioner for a leasehold est by replacing a fixture in which surrender interest, what is the the concessioner has a leasehold leasehold surrender interest in the surrender interest? related capital improvements for A concessioner that replaces an ex- purposes of a new concession contract? isting fixture in which the concessioner has a leasehold surrender interest with A new leasehold surrender interest a new fixture will increase its lease- concession contract awarded to a new hold surrender interest by the amount concessioner will require the new con- of the construction cost of the replace- cessioner to pay the prior concessioner ment fixture less the construction cost its leasehold surrender interest value in existing capital improvements as de- of the replaced fixture. termined under § 51.62. The new concessioner upon payment will have a leasehold surrender interest in the related capital improvements on a unit-by-unit basis under the terms of the new lease-

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§ 51.66 Under what conditions will a awarded a new concession contract concessioner obtain a leasehold sur- upon expiration or other termination render interest in existing real of its 1965 Act concession contract, be property improvements in which no entitled to receive compensation for its leasehold surrender interest exists? possessory interest in the amount and (a) A concession contract may re- manner described by the possessory in- quire the concessioner to replace fix- terest concession contract. The conces- tures in real property improvements in sioner shall also be entitled to receive which there is no leasehold surrender all other compensation, including any interest (e.g., fixtures attached to an compensation for property in which existing government facility assigned by the Director to the concessioner). A there is no possessory interest, to the leasehold surrender interest will be ob- extent and in the manner that the tained by the concessioner in such fix- possessory interest contract may pro- tures subject to the approval and deter- vide. mination of construction cost and other conditions contained in this part. § 51.69 What happens if there is a dis- (b) A concession contract may re- pute between the new concessioner quire the concessioner to undertake a and a prior concessioner as to the value of the prior concessioner’s major rehabilitation of a structure in possessory interest? which there is no leasehold surrender interest (e.g., a government-con- In case of a dispute between a new structed facility assigned to the con- concessioner and a prior concessioner cessioner). Upon substantial comple- as to the value of the prior conces- tion of the major rehabilitation, the sioner’s possessory interest, the dis- concessioner will obtain a leasehold pute will be resolved under the proce- surrender interest in the structure. dures contained in the possessory in- The initial construction cost of this terest concession contract. A new con- leasehold surrender interest will be the cessioner will not agree on the value of construction cost of the major rehabili- a prior concessioner’s possessory inter- tation. Depreciation for purposes of est without the prior written approval leasehold surrender interest value will of the Director unless the value is de- apply only to the rehabilitated compo- termined through the binding deter- nents of the related structure. mination process required by the § 51.67 Will a concessioner obtain possessory interest concession con- leasehold surrender interest as a tract. The Director’s written approval result of repair and maintenance of is to ensure that the value is con- real property improvements? sistent with the terms and conditions A concessioner will not obtain initial of the possessory interest concession or increased leasehold surrender inter- contract. If a new concessioner and a est as a result of repair and mainte- prior concessioner engage in a binding nance of real property improvements process to resolve a dispute as to the unless a repair and maintenance value of the prior concessioner’s project is a major rehabilitation. possessory interest, the new concessioner must allow the Director to as- Subpart H—Possessory Interest sist the new concessioner in the dispute process to the extent requested by § 51.68 If a concessioner under a 1965 the Director. Nothing in this section Act concession contract is not awarded a new concession contract, may be construed as limiting the how will a concessioner that has a rights of the prior concessioner to be possessory interest receive com- paid for its possessory interest or other pensation for its possessory inter- property by a new concessioner in ac- est? cordance with the terms of its conces- A concessioner that has possessory sion contract. 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

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§ 51.70 If a concessioner under a 1965 § 51.72 If a new concessioner is award- Act concession contract is awarded ed the contract, what is the rela- a new concession contract, what tionship between leasehold sur- happens to the concessioner’s render interest and possessory in- possessory interest? terest? In the event a concessioner under a If a new concessioner is awarded a 1965 Act concession contract is awarded leasehold surrender interest concession a new concession contract replacing a contract and is required to pay a prior possessory interest concession con- concessioner for possessory interest in tract, the concessioner will obtain a real property improvements, the new leasehold surrender interest in its ex- concessioner will have a leasehold sur- isting possessory interest real property improvements under the terms of the render interest in the real property im- new concession contract. The conces- provements under the terms of its new sioner will carry over as the initial concession contract. The initial value value of such leasehold surrender inter- of the leasehold surrender interest (in- est (instead of initial construction stead of initial construction cost) will cost) an amount equal to the value of be the value of the possessory interest its possessory interest in real property as of the expiration or other termi- improvements as of the expiration or nation of the 1965 Act possessory inter- other termination of its possessory in- est concession contract. This leasehold terest contract. This leasehold sur- surrender interest will apply even if render interest will apply to the con- the related possessory interest real cessioner’s possessory interest in real property improvements are not capital property improvements even if the real improvements as defined in this part. property improvements are not capital In the event a new concessioner ob- improvements as defined in this part. tains a leasehold surrender interest in In the event that the concessioner had only a portion of a structure as a result a possessory interest in only a portion of the acquisition of a possessory inter- of a structure, depreciation for pur- est from a prior concessioner, deprecia- poses of leasehold surrender interest tion for purposes of leasehold surrender value under the new concession con- interest value will apply only to the tract will apply only to the portion of portion of the structure to which the the structure to which the possessory possessory interest applied. interest applied. The concessioner and the Director will seek to agree on an allocation of the leasehold surrender Subpart I—Concession Contract interest value on a unit by unit basis. Provisions

§ 51.71 What is the process to be fol- § 51.73 What is the term of a conces- lowed if there is a dispute between sion contract? the prior concessioner and the Di- rector as to the value of possessory A concession contract will generally interest? be awarded for a term of 10 years or less unless the Director determines Unless other procedures are agreed to that the contract terms and condi- by the concessioner and the Director, in the event that a concessioner under tions, including the required construc- a possessory interest concession con- tion of capital improvements, warrant tract is awarded a new concession con- a longer term. It is the policy of the tract and there is a dispute between Director under these requirements that the concessioner and the Director as to the term of concession contracts the value of such possessory interest, should be as short as is prudent, taking or, a dispute as to the allocation of an into account the financial require- established overall possessory interest ments of the concession contract, re- value on a unit by unit basis, the value source protection and visitor needs, and/or allocation will be established by and other factors the Director may arbitration in accordance with the deem appropriate. In no event will a terms and conditions of this part. The concession contract have a term of arbitration procedures are described in more than 20 years (unless extended in § 51.51. accordance with this part).

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§ 51.74 When may a concession con- ation of a particular allocation level tract be terminated by the Direc- pursuant to the terms of a concession tor? contract or otherwise. Such allocations Concession contracts will contain ap- will be made, withdrawn and/or ad- propriate provisions for suspension of justed by the Director from time to operations under a concession contract time in furtherance of the purposes of and for termination of a concession this part. contract by the Director for default, including, without limitation, unsatis- § 51.77 Will a concession contract pro- factory performance, or termination vide a concessioner an exclusive when necessary to achieve the purposes right to provide visitor services? of the 1998 Act. The purposes of the 1998 Concession contracts will not provide Act include, but are not limited to, in any manner an exclusive right to protecting, conserving, and preserving provide all or certain types of visitor park area resources and providing nec- services in a park area. The Director essary and appropriate visitor services may limit the number of concession in park areas. contracts to be awarded for the con- § 51.75 May the Director segment or duct of visitor services in a particular split concession contracts? park area in furtherance of the purposes described in this part. The Director may not segment or otherwise split visitor services author- § 51.78 Will a concession contract re- ized or required under a single conces- quire a franchise fee and will the sion contract into separate concession franchise fee be subject to adjust- contracts if the purpose of such action ment? is to establish a concession contract with anticipated annual gross receipts (a) Concession contracts will provide of less than $500,000. for payment to the government of a franchise fee or other monetary consid- § 51.76 May the Director include in a eration as determined by the Director concession contract or otherwise upon consideration of the probable grant a concessioner a preferential value to the concessioner of the privi- right to provide new or additional leges granted by the contract involved. visitor services? This probable value will be based upon The Director may not include a pro- a reasonable opportunity for net profit vision in a concession contract or oth- in relation to capital invested and the erwise grant a concessioner a pref- obligations of the contract. Consider- erential right to provide new or addi- ation of revenue to the United States tional visitor services under the terms shall be subordinate to the objectives of a concession contract or otherwise. of protecting and preserving park areas For the purpose of this section, a and of providing necessary and appro- ‘‘preferential right to new or additional priate visitor services at reasonable services’’ means a right of a concessioner to a preference (in the nature of rates. a right of first refusal or otherwise) to (b) The franchise fee contained in a provide new or additional visitor serv- concession contract with a term of 5 ices in a park area beyond those al- years or less may not be adjusted dur- ready provided by the concessioner ing the term of the contract. Conces- under the terms of a concession con- sion contracts with a term of more tract. A concession contract may be than 5 years will contain a provision amended to authorize the concessioner that provides for adjustment of the to provide minor additional visitor contract’s established franchise fee at services that are a reasonable exten- the request of the concessioner or the sion of the existing services. A conces- Director. An adjustment will occur if sioner that is allocated park area en- the concessioner and the Director mu- trance, user days or similar resource tually determine that extraordinary, use allocations for the purposes of a unanticipated changes occurred after concession contract will not obtain any the effective date of the contract that contractual or other rights to continu-

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have affected or will significantly af- § 51.81 May the Director include ‘‘spe- fect the probable value of the privi- cial account’’ provisions in conces- leges granted by the contract. The con- sion contracts? cession contract will provide for arbi- (a) The Director may not include in tration if the Director and a conces- concession contracts ‘‘special account’’ sioner cannot agree upon an appro- provisions, that is, contract provisions priate adjustment to the franchise fee which require or authorize a conces- that reflects the extraordinary, unanticipated changes determined by the sioner to undertake with a specified concessioner and the Director. percentage of the concessioner’s gross receipts the construction of real prop- § 51.79 May the Director waive pay- erty improvements, including, without ment of a franchise fee or other limitation, capital improvements on payments? park lands. The construction of capital The Director may not waive the con- improvements will be undertaken only cessioner’s payment of a franchise fee pursuant to the leasehold surrender in- or other payments or consideration re- terest provisions of this part and the quired by a concession contract, except applicable concession contract. that a franchise fee may be waived in (b) Concession contracts may contain part by the Director pursuant to ad- provisions that require the conces- ministrative guidelines that may allow sioner to set aside a percentage of its for a partial franchise fee waiver in gross receipts or other funds in a repair recognition of exceptional performance and maintenance reserve to be used at by a concessioner under the terms of a the direction of the Director solely for concession contract. A concessioner maintenance and repair of real prop- will have no right to require the par- erty improvements located in park tial waiver of a franchise fee under this authority or under any related admin- areas and utilized by the concessioner istrative guidelines. in its operations. Repair and maintenance reserve funds may not be ex- § 51.80 How will the Director establish pended to construct real property im- franchise fees for multiple outfitter provements, including, without limita- and guide concession contracts in tion, capital improvements. Repair and the same park area? maintenance reserve provisions may If the Director awards more than one not be included in concession contracts outfitter and guide concession contract in lieu of a franchise fee, and funds that authorizes or requires the conces- from the reserves will be expended only sioners to provide the same or similar for the repair and maintenance of real visitor services at the same approxi- property improvements assigned to the mate location or utilizing the same re- concessioner by the Director for use in source within a single park area, the its operations. Director will establish franchise fees (c) A concession contract must re- for those concession contracts that are quire the concessioner to maintain in comparable. In establishing these com- good condition through a comprehen- parable franchise fees, the Director sive repair and maintenance program will take into account, as appropriate, variations in the nature and type of all of the concessioner’s personal prop- visitor services authorized by par- erty used in the performance of the ticular concession contracts, including, concession contract and all real prop- but not limited to, length of the visitor erty improvements, including, without experience, type of equipment utilized, limitation, capital improvements, and, relative expense levels, and other rel- government personal property, as- evant factors. The terms and condi- signed to the concessioner by a conces- tions of an existing concession con- sion contract. tract will not be subject to modification or open to renegotiation by the § 51.82 Are a concessioner’s rates re- Director because of the award of a new quired to be reasonable and subject concession contract at the same ap- to approval by the Director? proximate location or utilizing the (a) Concession contracts will permit same resource. the concessioner to set reasonable and

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appropriate rates and charges for vis- was) regarded as an Alaska Native by itor services provided to the public, any village or group. subject to approval by the Director. (2) Arts and crafts objects means art (b) Unless otherwise provided in a works and crafts that are in a tradi- concession contract, the reasonable- tional or non-traditional style or me- ness of a concessioner’s rates and dium. charges to the public will be deter- (3) Authentic native handicrafts means mined primarily by comparison with arts and crafts objects created by a those rates and charges for facilities United States Indian, Alaska Native, and services of comparable character Native Samoan or Native Hawaiian under similar conditions, with due con- that are made with the help of only sideration of the following factors and such devices as allow the manual skill other factors deemed relevant by the of the maker to condition the shape Director: Length of season; peakloads; and design of each individual object. average percentage of occupancy; ac- (4) Native Hawaiian means any indi- cessibility; availability and costs of vidual who is a descendant of the ab- labor and materials; and types of pa- original people that, prior to 1778, oc- tronage. Such rates and charges may cupied and exercised sovereignty in the not exceed the market rates and area that now constitutes the State of charges for comparable facilities, Hawaii. goods, and services, after taking these (5) United States Indian means any in- factors into consideration. dividual that is a member of an Indian tribe as defined in 18 U.S.C. 1159(c)(3). § 51.83 Sale of Native Handicrafts. [72 FR 32190, June 12, 2007] (a) Where authorized by an applicable concession contract, concessioners are encouraged to sell authentic native Subpart J—Assignment or Encum- handicrafts appropriately labeled or brance of Concession Con- denoted as authentic that reflect the tracts cultural, historical, and geographic characteristics of the related park § 51.84 What special terms must I area. To further this objective, conces- know to understand this part? sion contracts will contain a provision To understand this subpart specifi- that exempts the revenue of a conces- cally and this part in general you must sioner derived from the sale of appro- refer to these definitions, applicable in priately labeled or denoted authentic the singular or plural, whenever the native handicrafts from the concession terms are used in this part. contract’s franchise fee. A controlling interest in a concession (b) The sale of products as authentic contract means an interest, beneficial native handicrafts is further regulated or otherwise, that permits the exercise under the Indian Arts and Crafts Act, of managerial authority over a conces- Public Law 101–644, as amended. sioner’s performance under the terms (c) Definitions. (1) Alaska Native of the concession contract and/or deci- means any citizen of the United States sions regarding the rights and liabil- who is a person of one-fourth degree or ities of the concessioner. more Alaskan Indian (including A controlling interest in a concessioner Tsimshian Indians not enrolled in the means, in the case of corporate conces- Metalakatla Indian Community), Es- sioners, an interest, beneficial or oth- kimo, or Aleut blood, or combination erwise, of sufficient outstanding voting thereof. The term includes any person securities or capital of the conces- so defined either or both of whose adop- sioner or related entities that permits tive parents are not Alaska Natives. It the exercise of managerial authority also includes, in the absence of a min- over the actions and operations of the imum blood quantum, any citizen of concessioner. A ‘‘controlling interest’’ the United States who is regarded as in a concessioner also means, in the an Alaska Native by the Alaska native case of corporate concessioners, an in- village or native groups of which he or terest, beneficial or otherwise, of suffi- she claims to be a member and whose cient outstanding voting securities or father or mother is (or, if deceased, capital of the concessioner or related

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entities to permit the election of a ma- approval of the Director, any of the fol- jority of the Board of Directors of the lowing: concessioner. The term ‘‘controlling (a) Any concession contract; interest’’ in a concessioner, in the in- (b) Any rights to operate under or stance of a partnership, limited part- manage performance under a conces- nership, joint venture, other business sion contract as a subconcessioner or organization or individual entrepre- otherwise; neurship, means ownership or bene- (c) Any controlling interest in a con- ficial ownership of the assets of the cessioner or concession contract; or concessioner that permits the exercise (d) Any leasehold surrender interest of managerial authority over the ac- or possessory interest obtained under a tions and operations of the conces- concession contract. sioner. Rights to operate and/or manage under § 51.87 Does the concessioner have an a concession contract means any ar- unconditional right to receive the rangement where the concessioner em- Director’s approval of an assign- ploys or contracts with a third party to ment or encumbrance? operate and/or manage the performance No, approvals of assignments or en- of a concession contract (or any por- cumbrances are subject to the fol- tion thereof). This does not apply to ar- lowing determinations by the Director: rangements with an individual em- (a) That the purpose of a leasehold ployee. surrender interest or possessory inter- Subconcessioner means a third party est encumbrance is either to finance that, with the approval of the Director, the construction of capital improve- has been granted by a concessioner ments under the applicable concession rights to operate under a concession contract in the applicable park area or contract (or any portion thereof), to finance the purchase of the applica- whether in consideration of a percent- ble concession contract. An encum- age of revenues or otherwise. brance of a leasehold surrender interest or possessory interest may not be made § 51.85 What assignments require the for any other purpose, including, but approval of the Director? not limited to, providing collateral for The concessioner may not assign, other debt of a concessioner, the parent sell, convey, grant, contract for, or of a concessioner, or an entity related otherwise transfer (such transactions to a concessioner; collectively referred to as ‘‘assign- (b) That the encumbrance does not ments’’ for purposes of this part), with- purport to provide the creditor or as- out the prior written approval of the signee any rights beyond those pro- Director, any of the following: vided by the applicable concession con- (a) Any concession contract; tract, including, but not limited to, (b) Any rights to operate under or any rights to conduct business in a manage the performance of a conces- park area except in strict accordance sion contract as a subconcessioner or with the terms and conditions of the otherwise; applicable concession contract; (c) Any controlling interest in a con- (c) That the encumbrance does not cessioner or concession contract; or purport to permit a creditor or as- (d) Any leasehold surrender interest signee of a creditor, in the event of de- or possessory interest obtained under a fault or otherwise, to begin operations concession contract. under the applicable concession contract or through a designated operator § 51.86 What encumbrances require unless and until the Director deter- the approval of the Director? mines that the proposed operator is a The concessioner may not encumber, qualified person as defined in this part; pledge, mortgage or otherwise provide (d) That an assignment or encum- as a security interest for any purpose brance does not purport to assign or (such transactions collectively referred encumber assets that are not owned by to as ‘‘encumbrances’’ for purposes of the concessioner, including, without this part), without the prior written limitation, park area entrance, user

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day, or similar use allocations made by § 51.90 How does the concessioner get the Director; the Director’s approval before mak- (e) That the assignment is to a quali- ing an assignment or encumbrance? fied person as defined in this part; Before completing any assignment or (f) That the assignment or encum- encumbrance which may be considered brance would not have an adverse im- to be the type of transaction described pact on the protection, conservation or in this part, including, but not limited preservation of park resources; to, the assignment or encumbrance of (g) That the assignment or encum- what may be a controlling interest in a brance would not have an adverse impact on the provision of necessary and concessioner or a concession contract, appropriate facilities and services to the concessioner must apply in writing visitors at reasonable rates and for approval of the transaction by the charges; and Director. (h) That the terms of the assignment or encumbrance are not likely, directly § 51.91 What information may the Di- rector require in the application? or indirectly, to reduce an existing or new concessioner’s opportunity to earn An application for the Director’s ap- a reasonable profit over the remaining proval of an assignment or encum- term of the applicable concession con- brance will include, to the extent re- tract, to affect adversely the quality of quired by the Director in the cir- facilities and services provided by the cumstances of the transaction, the fol- concessioner, or result in a need for in- lowing information in such detail as creased rates and charges to the public the Director may specify in order to to maintain the quality of concession make the determinations required by facilities and services. this subpart: (a) All instruments proposed to im- § 51.88 What happens if an assignment or encumbrance is completed with- plement the transaction; out the approval of the Director? (b) An opinion of counsel to the effect Assignments or encumbrances com- that the proposed transaction is lawful pleted without the prior written ap- under all applicable federal and state proval of the Director will be consid- laws; ered as null and void and a material (c) A narrative description of the pro- breach of the applicable concession posed transaction; contract which may result in termi- (d) A statement as to the existence nation of the contract for cause. No and nature of any litigation relating to person will obtain any valid or enforce- the proposed transaction; able rights in a concessioner, in a con- (e) A description of the management cession contract, or to operate or man- qualifications, financial background, age under a concession contract as a and financing and operational plans of subconcessioner or otherwise, or to any proposed transferee; leasehold surrender interest or (f) A detailed description of all finan- possessory interest, if acquired in vio- cial aspects of the proposed trans- lation of the requirements in this sub- action; part. (g) Prospective financial statements § 51.89 What happens if there is a de- (proformas); fault on an encumbrance approved (h) A schedule that allocates in detail by the Director? the purchase price (or, in the case of a In the event of default on an encum- transaction other than an asset pur- brance approved by the Director in ac- chase, the valuation) of all assets as- cordance with this part, the creditor, signed or encumbered. In addition, the or an assignee of the creditor, may suc- applicant must provide a description of ceed to the interests of the conces- the basis for all allocations and owner- sioner only to the extent provided by ship of all assets; and the approved encumbrance, this part (i) Such other information as the Di- and the terms and conditions of the ap- rector may require to make the deter- plicable concession contract. minations required by this subpart.

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§ 51.92 What are standard proformas? § 51.95 Does the Director’s approval of an assignment or encumbrance in- Concessioners are encouraged to sub- clude any representations of any mit standard prospective financial nature? statements (proformas) pursuant to this part. A ‘‘standard proforma’’ is one In approving an assignment or en- that: cumbrance, the Director has no duty to inform any person of any information (a) Provides projections, including the Director may have relating to the revenues and expenses that are con- concession contract, the park area, or sistent with the concessioner’s past op- other matters relevant to the conces- erating history unless the proforma is sion contract or the assignment or en- accompanied by a narrative that de- cumbrance. In addition, in approving scribes why differing expectations are an assignment or encumbrance, the Di- achievable and realistic; rector makes no representations of any (b) Assumes that any loan related to nature to any person about any matter, an assignment or encumbrance will be including, but not limited to, the paid in full by the expiration of the value, allocation, or potential profit- concession contract unless the ability of any concession contract or proforma contains a narrative descrip- assets of a concessioner. No approval of tion as to why an extended loan period an assignment or encumbrance may be is consistent with an opportunity for construed as altering the terms and reasonable profit over the remaining conditions of the applicable concession term of the concession contract. The contract unless expressly so stated by narrative description must include, but the Director in writing. is not limited to, identification of the loan’s collateral after expiration of the § 51.96 May the Director amend or ex- concession contract; and tend a concession contract for the (c) Assumes amortization of any in- purpose of facilitating a trans- tangible assets assigned or encumbered action? as a result of the transaction over the The Director may not amend or ex- remaining term of the concession con- tend a concession contract for the pur- tract unless the proforma contains a pose of facilitating an assignment or narrative description as to why such encumbrance. The Director may not extended amortization period is con- make commitments regarding rates to sistent with an opportunity for reason- the public, contract extensions, conces- able profit over the remaining term of sion contract terms and conditions, or the concession contract. any other matter, for the purpose of facilitating an assignment or encum- § 51.93 If the transaction includes brance. more that one concession contract, how must required information be § 51.97 May the Director open to re- provided? negotiation or modify the terms of a In circumstances of an assignment or concession contract as a condition encumbrance that includes more than to the approval of a transaction? one concession contract, the conces- The Director may not open to re- sioner must provide the information negotiation or modify the terms and described in this subpart on a contract conditions of a concession contract as by contract basis. a condition to the approval of an assignment or encumbrance. The excep- § 51.94 What information will the Di- tion is if the Director determines that rector consider when deciding to renegotiation or modification is re- approve a transaction? quired to avoid an adverse impact on In deciding whether to approve an as- the protection, conservation or preser- signment or encumbrance, the Director vation of the resources of a park area will consider the proformas, all other or an adverse impact on the provision information submitted by the conces- of necessary and appropriate visitor sioner, and other information available services at reasonable rates and to the Director. charges.

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Subpart K—Information and the Director in evaluating such pro- Access to Information posals, until the date that the new concession contract solicited by the pro- § 51.98 What records must the conces- spectus is awarded. At that time, the sioner keep and what access does Director may or will make the pro- the Director have to records? posals and documents publicly avail- A concessioner (and any subconces- able in accordance with applicable law. sioner) must keep any records that the Director may require for the term of Subpart L—The Effect of the 1998 the concession contract and for five Act’s Repeal of the 1965 Act calendar years after the termination or expiration of the concession contract § 51.101 Did the 1998 Act repeal the to enable the Director to determine 1965 Act? that all terms of the concession contract are or were faithfully performed. Section 415 of the 1998 Act repealed The Director and any duly authorized the 1965 Act and related laws as of No- representative of the Director must, vember 13, 1998. This repeal did not af- for the purpose of audit and examina- fect the validity of any 1965 Act conces- tion, have access to all pertinent sion contract. The provisions of this records, books, documents, and papers part apply to all 1965 Act concession of the concessioner, subconcessioner contracts except to the extent that and any parent or affiliate of the con- such provisions are inconsistent with cessioner (but with respect to parents terms and conditions of a 1965 Act con- and affiliates, only to the extent nec- cession contract. essary to confirm the validity and performance of any representations or § 51.102 What is the effect of the 1998 commitments made to the Director by Act’s repeal of the 1965 Act’s pref- a parent or affiliate of the conces- erence in renewal? sioner). (a) Section 5 of the 1965 Act required the Secretary to give existing satisfac- § 51.99 What access to concessioner tory concessioners a preference in the records will the Comptroller Gen- renewal (termed a ‘‘renewal pref- eral have? erence’’ in the rest of this section) of The Comptroller General or any duly its concession contract or permit. Sec- authorized representative of the Comp- tion 415 of the 1998 Act repealed this troller General must, until the expira- statutory renewal preference as of No- tion of five calendar years after the vember 13, 1998. It is the final decision close of the business year of each con- of the Director, subject to the right of cessioner (or subconcessioner), have ac- appeal set forth in paragraph (b) of this cess to and the right to examine all section, that holders of 1965 Act con- pertinent books, papers, documents cession contracts are not entitled to be and records of the concessioner, sub- given a renewal preference with respect concessioner and any parent or affil- to such contracts (although they may iate of the concessioner (but with re- otherwise qualify for a right of pref- spect to parents and affiliates only to erence regarding such contracts under the extent necessary to confirm the va- Sections 403(7) and (8) of the 1998 Act as lidity and performance of any representations or commitments made to the implemented in this part). However, if Director by the parent or affiliate of a concessioner holds an existing 1965 the concessioner). Act concession contract and the contract makes express reference to a re- § 51.100 When will the Director make newal preference, the concessioner may proposals and evaluation docu- appeal to the Director for recognition ments publicly available? of a renewal preference. In the interest of enhancing competi- (b) Such appeal must be in writing tion for concession contracts, the Di- and be received by the Director no rector will not make publicly available later than thirty days after the proposals submitted in response to a issuance of a prospectus for a conces- prospectus or documents generated by sion contract under this part for which

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the concessioner asserts a renewal pref- Subpart M—Information Collection erence. The Director must make a decision on the appeal prior to the proposal § 51.104 Has OMB approved the collec- submission date specified in the pro- tion of information? spectus. Where applicable, the Director The Office of Management and Budg- will give notice of this appeal to all po- et (OMB) reviewed and approved the in- tential offerors that requested a pro- formation collection requirements con- spectus. The Director may delegate tained in this Part and assigned OMB consideration of such appeals only to a Control No. 1024–0029. We use this infor- Deputy or Associate Director. The de- mation to administer the National ciding official must prepare a written Park Service concessions program, in- decision on the appeal, taking into ac- cluding solicitation, award, and admin- count the content of the appeal and istration of concession contracts. A other available information. Federal agency may not conduct or (c) If the appeal results in a deter- sponsor and you are not required to re- mination by the Director that the 1965 spond to a collection of information Act concession contract in question unless it displays a currently valid OMB control number. You may send makes express reference to a renewal comments on the information collec- preference under section 5 of the 1965 tion requirements to the Information Act, the 1998 Act’s repeal of section 5 of Collection Clearance Officer, National the 1965 Act was inconsistent with the Park Service, 1849 C Street NW., (2601), terms and conditions of the concession Washington, DC 20240. contract, and that the holder of the concession contract in these cir- [79 FR 58263, Sept. 29, 2014] cumstances is entitled to a renewal preference by operation of law, the Di- PART 59—LAND AND WATER CON- rector will permit the concessioner to SERVATION FUND PROGRAM OF exercise a renewal preference for the ASSISTANCE TO STATES; POST- contract subject to and in accordance COMPLETION COMPLIANCE RE- with the otherwise applicable right of SPONSIBILITIES preference terms and conditions of this part, including, without limitation, the Sec. requirement for submission of a re- 59.1 Applicability. sponsive proposal pursuant to the 59.2 Information collection. terms of an applicable prospectus. The 59.3 Conversion requirements. Director, similarly, will permit any 59.4 Residency requirements. holder of a 1965 Act concession con- 59.5–59.6 [Reserved] tract that a court of competent juris- AUTHORITY: Sec. 6, L&WCF Act of 1965 as diction determines in a final order is amended; Pub. L. 88–578; 78 Stat. 897; 16 entitled to a renewal preference, for U.S.C. 4601–4 et seq. any reason, to exercise a right of pref- SOURCE: 51 FR 34184, Sept. 25, 1986, unless erence in accordance with the other- otherwise noted. wise applicable requirements of this part, including, without limitation, the § 59.1 Applicability. requirement for submission of a re- These post-completion responsibil- sponsive proposal pursuant to the ities apply to each area or facility for terms of an applicable prospectus. which Land and Water Conservation Fund (L&WCF) assistance is obtained, § 51.103 Severability. regardless of the extent of participa- A determination that any provision tion of the program in the assisted area of this part is unlawful will not affect or facility and consistent with the contractural agreement between NPS the validity of the remaining provi- and the State. Responsibility for com- sions. pliance and enforcement of these provisions rests with the State for both State and locally sponsored projects. The responsibilities cited herein are

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