36 CFR Part 51

[Code of Federal Regulations]
[Title 36, Volume 1]
[Revised as of July 1, 2009]
From the U.S. Government Printing Office via GPO Access
[CITE: 36CFR51]

[Page 314-317]

TITLE 36--PARKS, FORESTS, AND PUBLIC PROPERTY

CHAPTER I--NATIONAL PARK SERVICE, DEPARTMENT OF THE INTERIOR

PART 51_CONCESSION CONTRACTS--Table of Contents

Subpart I_Concession Contract Provisions

Sec. 51.73 What is the term of a concession contract?

A concession contract will generally be awarded for a term of 10
years or less unless the Director determines that the contract terms and
conditions, including the required construction of capital improvements,
warrant a longer term. It is the policy of the Director under these
requirements that the term of concession contracts should be as short as
is prudent, taking into account the financial requirements of the
concession contract, resource protection and visitor needs, and other
factors the Director may deem appropriate. In no event will a concession
contract have a term of more than 20 years (unless extended in
accordance with this part).

Sec. 51.74 When may a concession contract be terminated by the Director?

Concession contracts will contain appropriate provisions for
suspension of operations under a concession contract and for termination
of a concession contract by the Director for default, including, without
limitation, unsatisfactory performance, or termination when necessary to
achieve the purposes of the 1998 Act. The purposes of the 1998 Act
include, but are not limited to, protecting, conserving, and preserving
park area resources and providing necessary and appropriate visitor
services in park areas.

Sec. 51.75 May the Director segment or split concession contracts?

The Director may not segment or otherwise split visitor services
authorized or required under a single concession contract into separate
concession contracts if the purpose of such action is to establish a
concession contract with anticipated annual gross receipts of less than
$500,000.

[[Page 315]]

Sec. 51.76 May the Director include in a concession contract or otherwise grant a concessioner a preferential right to provide new or additional visitor
services?

The Director may not include a provision in a concession contract or
otherwise grant a concessioner a preferential right to provide new or
additional visitor services under the terms of a concession contract or
otherwise. For the purpose of this section, a ``preferential right to
new or additional services'' means a right of a concessioner to a
preference (in the nature of a right of first refusal or otherwise) to
provide new or additional visitor services in a park area beyond those
already provided by the concessioner under the terms of a concession
contract. A concession contract may be amended to authorize the
concessioner to provide minor additional visitor services that are a
reasonable extension of the existing services. A concessioner that is
allocated park area entrance, user days or similar resource use
allocations for the purposes of a concession contract will not obtain
any contractual or other rights to continuation of a particular
allocation level pursuant to the terms of a concession contract or
otherwise. Such allocations will be made, withdrawn and/or adjusted by
the Director from time to time in furtherance of the purposes of this
part.

Sec. 51.77 Will a concession contract provide a concessioner an exclusive right to provide visitor services?

Concession contracts will not provide in any manner an exclusive
right to provide all or certain types of visitor services in a park
area. The Director may limit the number of concession contracts to be
awarded for the conduct of visitor services in a particular park area in
furtherance of the purposes described in this part.

Sec. 51.78 Will a concession contract require a franchise fee and will the franchise fee be subject to adjustment?

(a) Concession contracts will provide for payment to the government
of a franchise fee or other monetary consideration as determined by the
Director upon consideration of the probable value to the concessioner of
the privileges granted by the contract involved. This probable value
will be based upon a reasonable opportunity for net profit in relation
to capital invested and the obligations of the contract. Consideration
of revenue to the United States shall be subordinate to the objectives
of protecting and preserving park areas and of providing necessary and
appropriate visitor services at reasonable rates.
(b) The franchise fee contained in a concession contract with a term
of 5 years or less may not be adjusted during the term of the contract.
Concession contracts with a term of more than 5 years will contain a
provision that provides for adjustment of the contract's established
franchise fee at the request of the concessioner or the Director. An
adjustment will occur if the concessioner and the Director mutually
determine that extraordinary, unanticipated changes occurred after the
effective date of the contract that have affected or will significantly
affect the probable value of the privileges granted by the contract. The
concession contract will provide for arbitration if the Director and a
concessioner cannot agree upon an appropriate adjustment to the
franchise fee that reflects the extraordinary, unanticipated changes
determined by the concessioner and the Director.

Sec. 51.79 May the Director waive payment of a franchise fee or other payments?

The Director may not waive the concessioner's payment of a franchise
fee or other payments or consideration required by a concession
contract, except that a franchise fee may be waived in part by the
Director pursuant to administrative guidelines that may allow for a
partial franchise fee waiver in recognition of exceptional performance
by a concessioner under the terms of a concession contract. A
concessioner will have no right to require the partial waiver of a
franchise fee under this authority or under any related administrative
guidelines.

[[Page 316]]

Sec. 51.80 How will the Director establish franchise fees for multiple outfitter and guide concession contracts in the same park area?

If the Director awards more than one outfitter and guide concession
contract that authorizes or requires the concessioners to provide the
same or similar visitor services at the same approximate location or
utilizing the same resource within a single park area, the Director will
establish franchise fees for those concession contracts that are
comparable. In establishing these comparable franchise fees, the
Director will take into account, as appropriate, variations in the
nature and type of visitor services authorized by particular concession
contracts, including, but not limited to, length of the visitor
experience, type of equipment utilized, relative expense levels, and
other relevant factors. The terms and conditions of an existing
concession contract will not be subject to modification or open to
renegotiation by the Director because of the award of a new concession
contract at the same approximate location or utilizing the same
resource.

Sec. 51.81 May the Director include ``special account'' provisions in concession contracts?

(a) The Director may not include in concession contracts ``special
account'' provisions, that is, contract provisions which require or
authorize a concessioner to undertake with a specified percentage of the
concessioner's gross receipts the construction of real property
improvements, including, without limitation, capital improvements on
park lands. The construction of capital improvements will be undertaken
only pursuant to the leasehold surrender interest provisions of this
part and the applicable concession contract.
(b) Concession contracts may contain provisions that require the
concessioner to set aside a percentage of its gross receipts or other
funds in a repair and maintenance reserve to be used at the direction of
the Director solely for maintenance and repair of real property
improvements located in park areas and utilized by the concessioner in
its operations. Repair and maintenance reserve funds may not be expended
to construct real property improvements, including, without limitation,
capital improvements. Repair and maintenance reserve provisions may not
be included in concession contracts in lieu of a franchise fee, and
funds from the reserves will be expended only for the repair and
maintenance of real property improvements assigned to the concessioner
by the Director for use in its operations.
(c) A concession contract must require the concessioner to maintain
in good condition through a comprehensive repair and maintenance program
all of the concessioner's personal property used in the performance of
the concession contract and all real property improvements, including,
without limitation, capital improvements, and, government personal
property, assigned to the concessioner by a concession contract.

Sec. 51.82 Are a concessioner's rates required to be reasonable and subject to approval by the Director?

(a) Concession contracts will permit the concessioner to set
reasonable and appropriate rates and charges for visitor services
provided to the public, subject to approval by the Director.
(b) Unless otherwise provided in a concession contract, the
reasonableness of a concessioner's rates and charges to the public will
be determined primarily by comparison with those rates and charges for
facilities and services of comparable character under similar
conditions, with due consideration of the following factors and other
factors deemed relevant by the Director: Length of season; peakloads;
average percentage of occupancy; accessibility; availability and costs
of labor and materials; and types of patronage. Such rates and charges
may not exceed the market rates and charges for comparable facilities,
goods, and services, after taking these factors into consideration.

Sec. 51.83 Sale of Native Handicrafts.

(a) Where authorized by an applicable concession contract,
concessioners are encouraged to sell authentic native handicrafts
appropriately labeled or denoted as authentic that reflect the cultural,
historical, and geographic

[[Page 317]]

characteristics of the related park area. To further this objective,
concession contracts will contain a provision that exempts the revenue
of a concessioner derived from the sale of appropriately labeled or
denoted authentic native handicrafts from the concession contract's
franchise fee.
(b) The sale of products as authentic native handicrafts is further
regulated under the Indian Arts and Crafts Act, Public Law 101-644, as
amended.
(c) Definitions. (1) Alaska Native means any citizen of the United
States who is a person of one-fourth degree or more Alaskan Indian
(including Tsimshian Indians not enrolled in the Metalakatla Indian
Community), Eskimo, or Aleut blood, or combination thereof. The term
includes any person so defined either or both of whose adoptive parents
are not Alaska Natives. It also includes, in the absence of a minimum
blood quantum, any citizen of the United States who is regarded as an
Alaska Native by the Alaska native village or native groups of which he
or she claims to be a member and whose father or mother is (or, if
deceased, was) regarded as an Alaska Native by any village or group.
(2) Arts and crafts objects means art works and crafts that are in a
traditional or non-traditional style or medium.
(3) Authentic native handicrafts means arts and crafts objects
created by a United States Indian, Alaska Native, Native Samoan or
Native Hawaiian that are made with the help of only such devices as
allow the manual skill of the maker to condition the shape and design of
each individual object.
(4) Native Hawaiian means any individual who is a descendant of the
aboriginal people that, prior to 1778, occupied and exercised
sovereignty in the area that now constitutes the State of Hawaii.
(5) United States Indian means any individual that is a member of an
Indian tribe as defined in 18 U.S.C. 1159(c)(3).

[72 FR 32190, June 12, 2007]