`[Federal Register Volume 90, Number 11 (Friday, January 17, 2025)]
[Rules and Regulations]
[Pages 5639-5649]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-01206]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 52

[NPS-WASO-39268; PPWOBSADC0; PPMVSCS1Y.Y00000]
RIN 1024-AE47


Visitor Experience Improvements Authority Contracts

AGENCY: National Park Service, Interior.

ACTION: Final rule.

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SUMMARY: This rule implements the Visitor Experience Improvements 
Authority given to the National Park Service by Congress in Title VII 
of the National Park Service Centennial Act. This authority allows the 
National Park Service to award and administer commercial services 
contracts and related professional services contracts for the operation 
and expansion of commercial visitor facilities and visitor services 
programs in units of the National Park System.

DATES: This rule is effective February 18, 2025.
    Information collection requirements: If you wish to comment on the 
information collection requirements in this final rule, please note 
that the Office of Management and Budget (OMB) is required to make a 
decision concerning the collection of information contained in this 
final rule between 30 and 60 days after publication of this final rule 
in the Federal Register. Therefore, comments should be submitted to OMB 
by February 18, 2025.

ADDRESSES: 
    Docket: The comments received on the proposed rule and a related 
economic analysis are available in the docket for this rulemaking. 
Visit https://www.regulations.gov/ and search for Docket ID: NPS-2022-
0003.
    Information Collection Requirements: Written comments and 
suggestions on the information collection requirements should be 
submitted by the date specified above in DATES to https://www.reginfo.gov/public/do/PRAMain. Find this particular information 
collection by selecting ``Currently under Review--Open for Public 
Comments'' or by using the search function. Please provide a copy of 
your comments to the NPS Information Collection Clearance Officer 
(ADIR-ICCO), 13461 Sunrise Valley Drive, (MS-244) Herndon, VA 20171 
(mail); or [email protected] (email). Please include ``1024-AE47'' 
in the subject line of your comments.

FOR FURTHER INFORMATION CONTACT: Kurt Rausch, Chief of Commercial 
Services Program, National Park Service; (202) 513-7202; 
[email protected]. For questions regarding the NPS's information 
collection request contact [email protected].

SUPPLEMENTARY INFORMATION:

Background

NPS Authorities To Contract for Commercial Visitor Services

    The National Park Service (NPS) enters into concession contracts 
with persons and entities to provide commercial visitor services in 
over 100 units of the National Park System. Examples of such services 
include lodging, food, retail, marinas, transportation, and 
recreational activities. NPS concession contracts generate 
approximately $1.8 billion per year in gross receipts, while returning 
approximately $180 million in franchise fees to the NPS. What was 
commonly known as the National Park Service Concession Policies Act of 
1965 (1965 Act), Public Law 89-249, provided the first comprehensive 
statutory authority for the NPS to issue concession contracts. Since 
the repeal of the 1965 Act, concession contracts have been awarded 
under the National Park Service Concessions Management Improvement Act 
of 1998 (1998 Act), 54 U.S.C. 101911-101926. NPS regulations in 36 CFR 
part 51 govern the solicitation and award of concession contracts 
issued under the 1998 Act and the administration of concession 
contracts issued under the 1965 and 1998 Acts.
    The National Park Service Centennial Act (Centennial Act), 54 
U.S.C. 101931-101938, established the Visitor Experience Improvements 
Authority (VEIA) allowing the NPS to solicit, award, and administer 
commercial services contracts for the operation and expansion of 
commercial visitor facilities and visitor services programs in units of 
the National Park System. The VEIA supplements, but does not replace, 
the existing authority granted to the NPS in the 1998 Act to enter into 
concession contracts, or any other existing NPS authorities to provide 
commercial visitor services in units of the National Park System. The 
VEIA is also separate from authorities granted under the Office of 
Federal Procurement Policy Act and Federal Acquisition Regulations.
    The VEIA established a revolving fund that the NPS can use for 
expenses necessary for the management, improvement, enhancement, 
operation, construction, and maintenance of commercial visitor services 
and

[[Page 5640]]

facilities within the National Park System; and for the payment of 
possessory interest and leasehold surrender interest for concession 
contracts. Funds collected pursuant to contracts awarded under the VEIA 
will be credited to the revolving fund, and the NPS is authorized to 
transfer to the revolving fund, without reimbursement, any additional 
funds or revenue in connection with the functions carried out under the 
VEIA.

Differences Between VEIA and the Concession Contracts Authority

    The VEIA is intended to provide additional tools to expand, 
modernize, and improve the condition of commercial facilities and 
visitor services using contracting models that differ from and are in 
addition to the concession contracts used under the 1998 Act. These 
models include management agreements and percentage lease agreements 
found in the private hospitality industry, as well as other contract 
models that are consistent with the VEIA. There are differences in the 
revenue management and fee structure for contract models that may be 
used under the VEIA, as discussed below. These models may be used to 
provide a variety of commercial visitor services such as lodging, food, 
retail, marinas, transportation, camping, and recreational activities. 
The use of industry-standard models and industry-aligned contract terms 
may allow and encourage additional companies to bid on hospitality 
business opportunities in System units, thereby enhancing the visitor 
experience both at the particular System unit and across the System.
    Under a management agreement, the NPS would own the assets and 
proceeds of the business. The operator would provide staff and 
expertise to run the business in exchange for the NPS paying the 
operator a base fee plus an incentive fee. The NPS would authorize the 
operator to use available funds and revenue for operations (e.g., 
property maintenance, the purchase of supplies, furniture, and other 
personal property) and improvements (e.g., facility upgrades and 
repairs). Any financial return beyond what is needed for the business 
would be credited to the revolving fund.
    Under a percentage lease agreement, the operator would retain the 
revenue and pay a fee to the NPS. This would be similar to the 
concession contract model, although the fee structure under a 
percentage lease agreement would include payment of a base fee plus a 
percentage of revenue. Fees collected would be credited to the 
revolving fund.
    The VEIA also provides flexibility in the solicitation process. For 
example, the 1998 Act requires the NPS to consider specific evaluation 
factors, while the VEIA does not dictate any specific evaluation 
factors. This flexibility may allow businesses to more effectively 
respond to and be evaluated on how they will meet visitor needs for the 
services being offered. The flexibility of the VEIA also provides the 
potential to streamline the solicitation process to reduce the burden 
on businesses submitting proposals, including the ability to negotiate 
on the terms of the contract and greater ability to modify or adjust 
operations under existing contracts to reflect changes at the System 
unit or different visitor expectations during the contract term.
    In addition to commercial services contracts, the VEIA authorizes 
the NPS to enter into professional services contracts related to those 
commercial services contracts. These may include consulting contracts 
with hospitality and asset management experts for services such as 
developing requests for proposals, condition assessments, and 
operational and financial analysis.

Implementation of the VEIA

    The Centennial Act requires the NPS to promulgate regulations 
appropriate for implementation of the VEIA. 54 U.S.C. 101936. The 
Centennial Act also states that the VEIA expires seven years after the 
enactment of the law. 54 U.S.C. 101938. The Consolidated Appropriations 
Act, 2023 (Pub. L. 117-328) extended the expiration of the VEIA by an 
additional two years until December 16, 2025. The NPS has consulted 
with hospitality industry experts, including academic leaders, 
hospitality asset management companies, hotel owners and operators, and 
State agencies to assess current visitor service contract models and 
best practices in the hospitality industry. The NPS engaged a 
nationally recognized hospitality management consulting and asset 
management firm to assist the NPS with developing contracts, requests 
for qualifications and proposals, and solicitation, contract 
management, and accounting practices.
    The NPS has evaluated certain visitor services currently provided 
under concession contracts that may be suitable for commercial services 
contracts under the VEIA. The NPS used various criteria during this 
evaluation, including:
     Whether the services may be authorized under a commercial 
services contract under the VEIA (i.e., they may not be for the 
provision of outfitter and guide services, or for the provision of 
services for which the NPS has granted to an existing concessioner a 
preferential right of renewal under the 1998 Act);
     Whether the contract is necessary and appropriate for 
public use and enjoyment of the System unit where the services will be 
provided and can be executed in a manner that is consistent with the 
preservation and conservation of the resources and values of the unit;
     Whether the operator can provide the visitor services in a 
manner that will expand, modernize, and improve the condition of 
commercial visitor facilities and the services provided to visitors;
     Whether the contract would be suitable considering the 
type, size, and complexity of the services to be provided;
     Whether the NPS can solicit the contract before the VEIA 
expires; and
     Whether the level of capital investment needed makes a 
commercial services contract under the VEIA feasible. For example, if 
significant capital improvements are needed for which Federal funds 
would be unavailable, it may be more appropriate for the NPS to use a 
concession contract that allows operators to make investments in 
exchange for leasehold surrender interest and can have a term that is 
longer than ten years. These characteristics of concession contracts 
allow the operator to recoup some value of their investment and have 
more time to generate a return on their investment.
    During the public comment period for the proposed rule, the NPS 
received specific recommendations about how the VEIA should be used to 
expand, modernize, and improve commercial facilities and visitor 
services. Some commenters discussed the use of sustainable business 
practices related to renewable energy, water usage, and organic food 
sourcing. Other commenters made specific recommendations for updating 
campgrounds with modern, full-service amenities such as:
     Bathing facilities with hot showers, sinks, and flush 
toilets;
     Access to wi-fi throughout campsites;
     Outfitting campsites with site-specific hookups for EVs 
and electrical, water, and sewer services, as well as modern dump 
stations;
     Developing wider, longer campsites for modern RVs; and
     Developing more RV-accessible campsites to accommodate 
growing demand.
    The NPS appreciates all the feedback it received about how it can 
implement the VEIA for the benefit of visitors. The

[[Page 5641]]

NPS will look for opportunities to use the VEIA in a manner that 
enhances the visitor experience. This might include upgrades to 
campsites or other facilities such as marinas, hotels, restaurants, and 
retail stores. The NPS will provide information about implementation of 
the VEIA on the website for the NPS Commercial Services Program at 
https://www.nps.gov/orgs/csp/index.htm.

Final Rule

    The final rule includes requirements and limitations applicable to 
the VEIA that are directed by the Centennial Act. These requirements 
and limitations are promulgated in new 36 CFR part 52 and are explained 
below.
    The NPS may only issue a commercial services contract under the 
VEIA if the Secretary of the Interior, acting through the NPS, 
determines that the contract will support expansion, modernization, and 
improvement of the condition of commercial visitor facilities and the 
services provided to visitors. Commercial services contracts issued by 
the NPS under the VEIA must meet two additional criteria. First, the 
contract must be necessary and appropriate for public use and enjoyment 
of the National Park System unit where it is located. Second, the 
contract must be consistent with the preservation and conservation of 
the resources and values of the unit. These two criteria also must be 
met for concession contracts.
    The NPS may not award contracts under the VEIA for the provision of 
outfitter and guide services (as described in the 1998 Act), or to 
authorize the provision of facilities or services for which it has 
granted an existing concessioner a preferential right of renewal under 
the 1998 Act. The NPS may award commercial services contracts under the 
VEIA without regard to Federal laws and regulations governing 
procurement by Federal agencies, except for those laws and regulations 
related to Federal Government contracts that govern working conditions 
and wage rates and any civil rights provisions otherwise applicable 
thereto.
    The NPS must award VEIA commercial services contracts through a 
competitive selection process and must publicly solicit proposals for 
each contract before award. The NPS must prepare a request for 
proposals and publish notice of its availability. The NPS may not award 
a commercial services contract under the VEIA for a term greater than 
10 years. The person or entity awarded a commercial services contract 
under the VEIA will not receive leasehold surrender interest in capital 
improvements (as those terms are defined by the 1998 Act at 54 U.S.C. 
101915) completed during the term of the contract.
    Other than these basic requirements, the VEIA authorizes the NPS to 
design a flexible process for the solicitation and evaluation of 
proposals. The NPS will adjust this process to reflect standard 
practices in hospitality and related industries, accounting for any 
necessary NPS-specific conditions. In addition to restating the 
statutory requirements governing the VEIA, the rule includes defined 
terms and other provisions that will govern the administration of 
contracts under the VEIA. These provisions explain solicitation, 
selection, and award procedures, including information about how the 
Director will publicly solicit proposals for a commercial services 
contract and how the Director will evaluate proposals. Other provisions 
govern the terms of the contracts themselves, including provisions 
related to termination, rate approval, assignments of contracts, and 
the management of funds. The final rule also addresses access to 
information and records held by operators related to their performance 
under commercial services contracts and by contractors related to their 
performance under professional services contracts.

Summary of Public Comments

    The NPS published a proposed rule in the Federal Register on 
January 25, 2022 (87 FR 3729). The NPS accepted public comments on the 
proposed rule through March 28, 2022, via the mail, hand delivery, and 
the Federal eRulemaking Portal at https://www.regulations.gov. The NPS 
received 14 comments on the proposed rule from individuals and 
organizations.
    The concessioner community supported the general purpose of the 
VEIA and this rule, but raised questions about how the NPS will use the 
VEIA to complement rather than replace the existing concession 
contracting authority and asked for more details about implementation. 
Several commenters predicted that the use of contract models commonly 
used in the hospitality industry will generate substantial interest 
because they require less capital investment for operators, are 
familiar to operators, and provide greater flexibility. These 
commenters predicted that this will result in more competition and 
better visitor services. After considering public comments and 
additional review, the NPS made several substantive changes to the 
rule. First, the NPS added a new paragraph to Sec.  52.4 restating the 
statutory limitations of the VEIA that it cannot be used for outfitter 
and guide services, or for the provision of facilities or services for 
which the NPS has granted to an existing concessioner a preferential 
right of renewal under the 1998 Act. Similarly, the NPS added language 
to Sec.  52.14 restating several other statutory criteria which apply 
to VEIA contracts. Second, the NPS removed paragraph (a)(1) from Sec.  
52.30. This paragraph explained a funding structure for commercial 
services contracts that was under consideration when the NPS published 
the proposed rule. The NPS has determined, however that this structure 
is not allowed under Federal law because it would give a private party 
direct access to funds in an account owned by the Federal Government. 
Third, Sec.  52.41 has been updated to reflect the extended expiration 
date for the VEIA provided by Congress in the Consolidated 
Appropriations Act, 2023 (Public Law 117-328). The NPS also added 
language to this section addressing the possibility that Congress will 
further extend the expiration date and clarifying that contracts 
awarded under the VEIA may continue beyond the VEIA expiration date, 
subject to the terms of the particular contract. Additionally, the NPS 
corrected a reference to the Comptroller General of the United States 
in Sec.  52.36 and made several minor editorial changes to improve the 
clarity of the regulation and ensure consistency in terminology.
    A summary of the pertinent issues raised in the comments and NPS 
responses are provided below.
    1. Comment: Several commenters stated that commercial visitor 
services degrade the visitor experience and therefore should be 
prohibited in the National Park System.
    NPS Response: The NPS has several statutory authorities to allow 
for commercial visitor services within System units, including the 
VEIA. Commercial visitor services that degrade the visitor experience 
are not authorized by the VEIA. Commercial services contracts must be 
necessary and appropriate for public use and enjoyment of the System 
unit, and consistent with the preservation and conservation of the 
resources and values of the System unit. The NPS will adhere to these 
requirements in the planning, solicitation, award, and management of 
commercial service contracts under the VEIA. Moreover, the VEIA 
revolving fund monies cannot be used to decrease the availability of 
services and programs to the public.
    2. Comment: One commenter stated that the NPS should not use 
taxpayer

[[Page 5642]]

funds to pay operators of businesses that provide visitor services in 
System units.
    NPS Response: The VEIA authorizes the use of Federal taxpayer funds 
in furthering the VEIA's purposes, 54 U.S.C. 101935, but the NPS 
expects to rely primarily on proceeds from the provision of visitor 
services to accomplish VEIA's purposes. The NPS will conduct a detailed 
analysis before awarding a commercial visitor service contract under 
the VEIA to ensure that there is a reasonable business opportunity 
considering revenue, expenses, and other factors. In most cases, rates 
charged to visitors for services will result in net positive cash flow 
over the term of the contract to cover operating expenses with no need 
for the NPS to use funds from other sources. In some circumstances, 
however, the NPS may need to transfer funds to the operator from the 
revolving fund to cover business expenses that are not adequately 
covered by the cash flow of the business. For example, under the 
management agreement model, the NPS may need to transfer funds to the 
operator so that it can purchase supplies and equipment to allow the 
business to begin and continue operations before adequate cash flows 
exist to cover such expenses. As another example, under both the 
management agreement and percentage lease agreement models, the NPS may 
need to transfer funds to the operator to pay for large capital 
improvements to or the rehabilitation of the federally-owned buildings 
or other assets the NPS has assigned for use by the operator. Examples 
of such needs are a roof replacement or repairing a building 
foundation. These needs may be identified prior to issuance of the 
contract through a condition assessment or may be unexpected and 
identified during the contract term. The NPS could directly fund and 
contract for such projects without involving the operator. In some 
circumstances, however, funding such projects through the operator is 
beneficial because the operator can more expediently and effectively 
coordinate projects around visitor service operations thereby reducing 
impacts to the visitor experience. In either case, it would be 
appropriate for the NPS to pay for these projects because it would be 
investing in Federal facilities that the Federal Government owns.
    Under any of the circumstances described above, the funds provided 
to the operator could be paid from taxpayer or non-taxpayer revenue 
sources. One example of a non-taxpayer revenue source is concession 
franchise fees transferred to the revolving fund established under the 
VEIA.
    3. Comment: One commenter suggested that the NPS not use the term 
``commercial services contract'' when implementing the VEIA to avoid 
confusion with the terms ``concession contract'' and ``commercial use 
authorization'' that are used under separate authorities.
    NPS Response: The NPS uses the term ``commercial services 
contract'' because that is the term used in the authorizing statute. 
See for example 54 U.S.C. 101931(a). Commercial services contracts 
awarded under the VEIA will clearly identify the statutory authority 
being used to award the contract to avoid confusion with other written 
instruments such as concession contracts or commercial use 
authorizations. The contracts themselves will be titled according to 
the appliable contract model, such as a management agreement or a 
percentage lease agreement. This will further distinguish commercial 
services contracts issued under the VEIA from concession contracts and 
commercial use authorizations.
    4. Comment: One commenter expressed concern that under the VEIA the 
NPS might deposit Federal funds into a private bank account for use by 
the operator, potentially leading to misuse of those funds.
    NPS Response: Under the management agreement model, the NPS may 
make transfers of funds from the Federal revolving fund to private bank 
accounts established and owned by the operator that the operator will 
use to run the business. These accounts may include an operating 
account and a capital improvement account. The NPS will take numerous 
measures to minimize the risk of fraud, waste, and abuse of Federal 
funds in this process, and ensure compliance with all applicable laws 
pertaining to the use of Federal funds. The terms of the management 
agreement will require that private accounts used by the operator are 
insured by the Federal Deposit Insurance Corporation, that the NPS 
holds a first lien on account balances, and that account funds will not 
be commingled with other funds of the operator. Operating and capital 
budgets will be established and approved by the NPS. Expenses beyond 
approved operating and capital budgets will require written approval 
from NPS. Financial risk will be reduced further through monthly 
reporting requirements, NPS review of the operating and financial 
results of the business, independent annual audits of the operator's 
financial statements and controls, and (in some cases) ongoing review 
and support of business operations provided by a hospitality asset 
manager on behalf of the NPS.
    5. Comment: One commenter noted that the rule does not state 
whether a percentage of the deposits in the revolving fund will be 
retained in the System unit where the visitor services are provided for 
the purposes of managing the commercial services contract and 
protecting visitors and resources.
    NPS Response: Unlike the 1998 Act, which allows System units to 
retain up to 80% of franchise fees generated from concession contracts, 
the VEIA does not establish any specific allocations for funds 
collected under commercial services contracts. The NPS can use funds in 
the revolving fund for any expenses necessary for the management, 
improvement, enhancement, operation, construction, and maintenance of 
commercial visitor services and facilities that exist across the 
National Park System. The NPS will conduct annual planning to determine 
the appropriate level of funding that should be retained at the System 
unit where the funds were generated. Regardless of what percentage of 
funds are retained at the respective System unit, the NPS can take 
other actions to ensure that the operator's business activities are 
consistent with visitor and resource protection goals. When the NPS 
uses a management agreement model, it may award a related asset 
management contract. This contract would provide professional 
hospitality support services to help the NPS oversee the operator's 
performance, including ensuring the business activities are consistent 
with visitor and resource protection in the System unit.
    6. Comment: One commenter recommended that the NPS address 
intellectual property associated with commercial operations authorized 
by the VEIA to protect the NPS from trademark disputes upon the 
expiration or termination of a contract.
    NPS Response: To avoid disputes and protect NPS intellectual 
property, commercial service contracts will include provisions about 
rights to intellectual property, including trademarks, that are used by 
commercial service providers during the term of the contract. This will 
include provisions about the names of facilities used by operators.
    7. Comment: One commenter stated the rule creates uncertainty for 
existing and potential commercial visitor service providers, as well as 
other stakeholders, in several areas, including the solicitation 
process and how the NPS will use funds in the revolving account. In 
general, these commenters asked the

[[Page 5643]]

NPS to provide more detail about how it will implement the VEIA.
    NPS Response: This rule omits details about implementation, such as 
solicitation and financial processes, in order to give the NPS 
flexibility as it develops and tests new contracting models that meet 
the goals of the VEIA. To the extent possible, the NPS will be 
consistent with hospitality industry contracting practices as it tests 
these models. For this reason, the solicitation processes and the 
structures and terms of the contracts should be familiar to most 
hospitality service providers. The NPS will issue requests for 
proposals that include a clear and complete description of the 
solicitation process and selection criteria. The request for proposal 
package will include the draft contract to eliminate uncertainty for 
those interested in submitting proposals and operating under that 
contract. The NPS will develop clear, internal operating procedures and 
manuals addressing various topics, including accounting and financial 
management practices. The NPS will make these publicly available as 
appropriate and allowed under applicable law.
    8. Comment: Several commenters asked the NPS to explain when it 
will use the VEIA instead of authorities to issue concession contracts, 
commercial use authorizations, and leases. One commenter stated that 
the NPS should not use the VEIA to replace the existing concession 
contract authority, and should use it only in unique and limited 
circumstances where concession contracts are not viable or do not give 
the respondent a chance to make a reasonable profit. Another commenter 
suggested that the NPS should use the VEIA only if there is no 
demonstrated interest from potential operators in entering into a 
concession contract or a commercial use authorization.
    NPS Response: The statutes authorizing the NPS to enter into 
concession contracts and commercial use authorizations (54 U.S.C. 
101911-101926), and authorizing the NPS to enter into leases (e.g., 54 
U.S.C. 102102, 306121), establish requirements the NPS must meet in 
order to use those authorities. The NPS also must follow applicable 
regulations and policies it has established for the use of those 
authorities. See, for example, 36 CFR part 51--Concession Contracts; 36 
CFR part 18--Leasing of Properties in Park Areas; and Policy Memorandum 
07-01 (Authorizing activities through leases versus concession 
contracts or commercial use authorizations). The VEIA specifically 
states that nothing in the statute modifies the terms and conditions of 
any awarded concession contract or the NPS's ability to enter into 
concession contracts under the 1998 Act. 54 U.S.C. 101937. This is 
restated for emphasis in Sec.  52.40 of this rule. The NPS declines to 
impose limitations in this rule on its use of the VEIA that do not 
exist in the statute. As a practical matter, existing statutory 
limitations on the use of the VEIA could make a concession contract 
more appropriate in certain circumstances. Commercial services 
contracts awarded under the VEIA cannot exceed ten years and operators 
cannot receive leasehold surrender interest. As a result, a concession 
contract may be more appropriate if a significant capital improvement 
is needed to provide the visitor services. The NPS may want to leverage 
private investment to fund those improvements and a concession contract 
would allow for a longer term and an opportunity for the operator to 
receive leasehold surrender interest for investments made during the 
term of the contract. In other cases, the ability to use VEIA contract 
models and practices more common in the hospitality industry may result 
in benefits such as cost savings, greater efficiency, increased 
competition, and greater return to the government. The NPS will 
evaluate opportunities to provide commercial visitor services on a 
case-by-case basis to determine which authority is the most 
appropriate.
    9. Comment: One commenter recommended that the rule explain how 
necessary capital improvements would be funded under commercial 
services contracts given the prohibition on paying leasehold surrender 
interest.
    NPS Response: The rule does not specifically address how necessary 
capital improvements will be funded under commercial services contracts 
because it may vary from contract to contract. In some cases, operators 
will conduct capital improvement projects using money from operating 
and capital improvement accounts that are funded from business revenues 
or deposits from the NPS that are transferred from the revolving fund. 
In other cases, the NPS will directly fund and contract for such 
projects without the involvement of the operator.
    10. Comment: One commenter asked the NPS to state in Sec.  52.4 of 
the rule that the NPS may not issue commercial services contracts under 
the VEIA for guide and outfitter services or contracts for which there 
is a current preferential right of renewal under the 1998 Act.
    NPS Response: The NPS has added a new paragraph to Sec.  52.4 of 
the rule to include these statements.
    11. Comment: Several commenters asked the NPS to include more 
detail in the rule about the bid process, in particular about how 
potential bidders and existing operators may suggest new and additional 
visitor services, and how the NPS will consider those suggestions 
during the competitive selection process and during the term of a 
contract.
    NPS Response: The NPS often requests ideas for new and additional 
services as a selection factor in prospectuses issued for concession 
contracts under the 1998 Act. The NPS may do the same when soliciting 
proposals for commercial services contracts under the VEIA if the NPS 
determines that is appropriate. The NPS will explain the details of 
such requests when they occur. The contracts will specify how the 
operator can propose new and additional services during the term of the 
contract. The NPS will not consider new or additional services that 
would result in a material change to the services authorized by the 
contract and described in the request for proposals. This will ensure 
that those who compete for the contract are treated fairly and that 
this process is consistent with how the NPS manages concession 
contracts. Defining the processes for proposing new and additional 
services in requests for proposals and contracts, on a case-by-case 
basis, gives the NPS more flexibility to tailor those processes to the 
unique circumstances of each situation.
    12. Comment: One commenter questioned whether the NPS will 
meaningfully consider information presented by respondents during 
request for qualifications, interview, and negotiation phases when 
Sec.  52.14 of the rule allows, but does not require, the NPS to do so.
    NPS Response: The rule states that NPS may (rather than must) 
consider such information because some of the information presented may 
be irrelevant to the selection process or, due to the nature of the 
contract, one or more of those phases might not be necessary for the 
evaluation process for the award of that contract. To the extent that a 
respondent presents relevant information in a phase that is needed for 
the selection process, the NPS will consider such information in a 
meaningful way.
    13. Comment: One commenter asked the NPS to add language to the 
rule that protects confidential, proprietary, or other information 
provided by respondents to the NPS during the solicitation process. 
This commenter asked the NPS to include a provision similar to 36 CFR 
51.100 that applies to concession contracts, which states that the NPS 
will not make proposals publicly available until a concession

[[Page 5644]]

contract is awarded, and then may make proposals and other documents 
publicly available in accordance with applicable law. This commenter 
also stated that paragraph (b) in Sec.  52.16 does not prevent the NPS 
from reviewing a bid developed at substantial expense by one respondent 
that includes information about its technical and management approach, 
rejecting that bid, and then sharing and using that information in 
negotiations with a competing bidder.
    NPS Response: As it does for concession contracts, before the 
commercial service contract is awarded, the NPS will consider 
information in proposals submitted in response to a prospectus as 
protected from disclosure under the Freedom of Information Act (FOIA), 
which establishes exemptions for information subject to deliberative 
process privilege and for trade secrets and commercial or financial 
information that is confidential or privileged. 5 U.S.C. 552(b)(4)-(5). 
After the contract has been awarded, the NPS may or will make the 
proposals and documents publicly available in accordance with 
applicable law. The NPS does not believe it is necessary to make these 
statements in the rule because determinations about whether information 
must be disclosed or not are governed by the FOIA, the Department's 
FOIA regulations (beginning at 43 CFR 2.1), and other applicable laws. 
The NPS will use all relevant information in proposals to make award 
decisions. The NPS must comply with these legal requirements in 
responding to a request under the FOIA, whether submitted by a 
respondent or another member of the public.
    14. Comment: One commenter recommended that the rule require the 
NPS to publish notices of availability of a request for proposals on 
the NPS commercial services program website and on the website for the 
System unit or units where the services would be provided.
    NPS Response: Paragraph (a) of Sec.  52.11 of the rule states that, 
in addition to publication in the System for Award Management or 
similar publication, the NPS also may publish notices of availability 
electronically on websites, including social media, and in local or 
national newspapers or trade magazines. For concession contracts, the 
NPS publishes notices of availability on the websites mentioned by the 
commenter in accordance with internal policy and procedures. The NPS 
expects to do the same for commercial services contracts. Rather than 
make this a regulatory requirement, however, the NPS prefers to 
maintain the flexibility to publish notifications in a manner that is 
most appropriate for each request.
    15. Comment: One commenter recommended that the rule provide more 
detail about the two potential contracting models identified by the NPS 
(management agreements and percentage lease agreements) and explain how 
those models will be used to promote investments that are necessary to 
expand, modernize, and improve the visitor services and facilities.
    NPS Response: The management agreement and percentage lease 
agreement models are explained above in more detail than they were in 
the preamble of the proposed rule and are explained further in the 
cost-benefit and initial regulatory flexibility analysis that is 
available in the docket for this rulemaking. The details of how the NPS 
will use those agreement models to further the goals of the statute 
will be determined during implementation of the VEIA. The NPS will 
provide information about implementation of the VEIA on the website for 
the NPS Commercial Services Program at https://www.nps.gov/orgs/csp/index.htm.
    16. Comment: One commenter encouraged the NPS to use the services 
of the Youth Conservation Corps for projects related to commercial 
visitor services provided under the VEIA and asked the NPS to consider 
a respondent's proposal to use the Youth Conservation Corps as a 
positive factor in the proposal selection process.
    NPS Response: The NPS appreciates the skill and experience that the 
Youth Conservation Corps brings to projects throughout the National 
Park System and will consider using Corps members for capital 
improvement projects under the VEIA that are directly funded by the 
NPS. Rather than establish specific selection factors in this rule, the 
NPS prefers to maintain flexibility to establish selection factors that 
are tailored to the specific contracting model being used and the 
specific objectives of the request. The NPS may identify the use of 
Corps members as a positive selection factor, if appropriate, and give 
weight to such commitments as well as other factors as it deems 
appropriate.
    17. Comment: One commenter expressed concern that the rule would 
increase costs to the public by allowing concessioners to set prices 
for visitor services that do not account for visitors that have a 
variety of income levels.
    NPS Response: The NPS is sensitive to the issue of reasonableness 
and appropriateness of rates and charges for commercial visitor 
services provided in System units recognizing that it is often more 
expensive to provide those services in System units compared to other 
locations outside the System. The NPS will oversee the operations of 
such businesses to ensure that charges for commercial visitor services 
are reasonable and appropriate. As described in Sec.  52.28 of the 
rule, generally, the NPS will accomplish this by approving rates for 
services provided to visitors based upon market demand, but the 
Director may specify rates or rate methods for particular services 
based on factors other than market demand, such as to ensure 
affordability to a broad segment of visitors.

Compliance With Other Laws, Executive Orders, and Department Policy

Regulatory Planning and Review (Executive Orders 12866 and 13563 and 
14094)

    Executive Order (E.O.) 14094 amends E.O. 12866 and reaffirms the 
principles of E.O. 12866 and E.O. 13563 and states that regulatory 
analysis should facilitate agency efforts to develop regulations that 
serve the public interest, advance statutory objectives, and are 
consistent with E.O. 12866 and E.O. 13563. Regulatory analysis, as 
practicable and appropriate, shall recognize distributive impacts and 
equity, to the extent permitted by law. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We developed this rule in a manner consistent with 
these requirements.
    E.O. 12866, as reaffirmed by E.O. 13563 and amended and reaffirmed 
by E.O. 14094, provides that the Office of Information and Regulatory 
Affairs (OIRA) in the Office of Management and Budget (OMB) will review 
all significant rules. OIRA determined that this final rule is not 
significant.

Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.)

    This rule will not have a significant economic effect on a 
substantial number of small entities under the RFA (5 U.S.C. 601 et 
seq.). This certification is based on the cost-benefit and initial 
regulatory flexibility analysis for the proposed rule found in the 
report entitled ``Visitor Experience Improvements Authority (VEIA) 
Proposed Rule Regulatory Assessment (RA) and Initial Regulatory 
Flexibility Analysis (IRFA),'' which can be viewed on https://www.regulations.gov in Docket ID: NPS-2022-0003. The certification in 
that report remains valid

[[Page 5645]]

for the final rule due to the limited changes in this rule from the 
proposed version.

Congressional Review Act (CRA)

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

Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq.)

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

Takings (E.O. 12630)

    This rule does not effect a taking of private property or otherwise 
have takings implications under E.O. 12630. A takings implication 
assessment is not required.

Federalism (E.O. 13132)

    Under the criteria in section 1 of E.O. 13132, the rule does not 
have sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement. This rule only affects visitor 
services provided on NPS-administered lands and waters. A federalism 
summary impact statement is not required.

Civil Justice Reform (E.O. 12988)

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

Consultation With Indian Tribes (E.O. 13175 and Department Policy)

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Indian Tribes through a 
commitment to consultation with Indian Tribes and recognition of their 
right to self-governance and Tribal sovereignty. The NPS has evaluated 
this proposed rule under the criteria in E.O. 13175 and under the 
Department's Tribal consultation policy and has determined that Tribal 
consultation is not required because the proposed rule will have no 
substantial direct effect on federally recognized Indian Tribes.

Paperwork Reduction Act of 1995 (PRA; 44 U.S.C. 3501 et seq.)

    This rule contains new information collections. All information 
collections require approval under the PRA. The NPS may not conduct or 
sponsor and you are not required to respond to a collection of 
information unless it displays a currently valid OMB control number. 
OMB must approve the new reporting and recordkeeping requirements 
identified below:
    (1) Solicitation of Proposals--The VEIA requires that the NPS 
solicit proposals for commercial services contracts through a 
competitive process. The NPS may also award and administer related 
professional services contracts. The solicitation process may include 
one or more phases such as a request for qualifications followed by or 
in concert with a request for more detailed information through a 
request for proposals. The process could also include interviews with 
respondents and a negotiation phase. The NPS will use the information 
collected to evaluate and select the best operator to provide the 
contracted services. Information submitted in response to a 
solicitation may include, as applicable to the specific project, types 
of information similar to the following:
     Information concerning the respondent's ability to comply 
with the commercial service contract terms and conditions;
     Information that demonstrates that the respondent is a 
qualified entity;
     Information that demonstrates the respondent's experience 
and prior performance in operating similar facilities and providing 
similar services;
     Information concerning the respondent's financial 
capability;
     Information concerning the respondent's proposed approach 
and methodology to deliver the services specified; and
     Information that the respondent provides in response to 
other factors identified in the request for proposals.
    (2) Reporting Requirements
    (A) Commercial Services Operators--In order to monitor their 
performance and make appropriate NPS management decisions, the NPS will 
require operators providing commercial services under a VEIA contract 
to provide information to the NPS through reports and plans such as the 
following:
     Annual Plan that includes information summarizing prior 
year operating activities, capital projects and facility condition 
assessment, and financial performance, and outlining projected annual 
operating and capital budgets, projected annual operating plans, 
capital project plans and designs, and staffing and marketing plans;
     Monthly Performance Reports that include monthly financial 
performance statements, capital project and operating performance 
information; and
     Ad hoc Reports such as environmental or safety incidents 
reports.
    The above types of plans and reports to owners (e.g., NPS) are 
standard for those providing commercial services in the hospitality 
industry in the private and public sector. The NPS requires financial 
data be submitted in accordance with Generally Accepted Accounting 
Principles (GAAP); however, no standardized form or format is defined 
for any plans or reports at this time. The NPS expects this to evolve 
during its implementation of the VEIA and may have forms and formats at 
a later time. The NPS will obtain OMB approval for any changes in 
reporting and/or recordkeeping requirements as they are developed.
    (B) Professional Services Providers--Professional services 
providers will be required to provide information to the NPS through 
deliverables, reports, and plans such as the following:
     Operator Annual Plan Review Report analyzing operator 
prior year performance and operational, capital project, and financial 
plans for the upcoming year;
     Monthly Asset Manager Reports analyzing operator 
operational, capital project, and financial performance; and
     Commercial Services Contract Solicitation Support 
Deliverables such as financial and business opportunity analysis 
reports, condition assessment reports, and draft Request for 
Qualifications/Request for Proposals documents for commercial services 
contracts.
    There is no standard format or form associated with these 
information requests.

[[Page 5646]]

    (3) Recordkeeping Requirements--Operators under commercial services 
contracts and contractors under professional services contracts must 
keep any records that the Director of the NPS may require for the term 
of the contract and for five calendar years after the termination or 
expiration of the contract to enable the Director to determine that all 
terms of the contract are or were faithfully performed. The Director, 
for the purpose of audit and examination, must have access to and the 
right to examine all pertinent records, books, documents, and papers of 
the operator, contractor, subcontractor, and any parent or affiliate of 
the operator or contractor (but with respect to parents and affiliates, 
only to the extent necessary to confirm the validity and performance of 
any representations or commitments made to the Director by a parent or 
affiliate of the operator or contractor).
    Title of Collection: Administration of Visitor Experience 
Improvements Authority, 54 U.S.C. 101936.
    OMB Control Number: 1024-New.
    Form Number: None.
    Type of Review: New.
    Respondents/Affected Public: Business entities desiring to enter 
VEIA-authorized contracts with the National Park Service.
    Total Estimated Number of Annual Respondents: 46 (Commercial 
Services Operators: 18; Professional Services Providers: 28).
    Total Estimated Number of Annual Responses:100 (Commercial Services 
Operators: 50; Professional Services Providers: 50).
    Estimated Completion Time per Response: Average time (Varies from 
24 hours to 800 hours, depending on respondent and/or activity).
    Total Estimated Number of Annual Burden Hours: 7,016 hours.
    Respondent's Obligation: Required to Obtain or Retain a Benefit.
    Frequency of Collection: On occasion.
    Total Estimated Annual Nonhour Burden Cost: $112,900 (for costs 
associated with solicitations, start-up costs, and recordkeeping 
requirements).
    As part of our continuing effort to reduce paperwork and respondent 
burdens, we invite the public and other Federal agencies to comment on 
any aspect of this information collection, including:
    (1) Whether or not the collection of information is necessary for 
the proper performance of the functions of the agency, including 
whether or not the information will have practical utility;
    (2) The accuracy of our estimate of the burden for this collection 
of information, including the validity of the methodology and 
assumptions used;
    (3) Ways to enhance the quality, utility, and clarity of the 
information to be collected; and
    (4) How the agency might minimize the burden of the collection of 
information on those who are to respond, including through the use of 
appropriate automated, electronic, mechanical, or other technological 
collection techniques or other forms of information technology, e.g., 
permitting electronic submission of response.
    Written comments and suggestions on the information collection 
requirements should be submitted by the date specified above in DATES 
to https://www.reginfo.gov/public/do/PRAMain. Find this particular 
information collection by selecting ``Currently under Review--Open for 
Public Comments'' or by using the search function. Please provide a 
copy of your comments to the NPS Information Collection Clearance 
Officer at the address specified above in ADDRESSES. Please include 
``1024-AE47'' in the subject line of your comments.

National Environmental Policy Act (NEPA)

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. A detailed statement 
under NEPA is not required. The NPS has determined the rule is 
categorically excluded under 43 CFR 46.210(i) because it is 
administrative, financial, legal, and technical in nature. In addition, 
the environmental effects of this rule are too speculative to lend 
themselves to meaningful analysis. NPS decisions to enter into 
contracts under the VEIA will be subject to compliance with NEPA at the 
time the contracts are executed. The NPS has determined the rule does 
not involve any of the extraordinary circumstances listed in 43 CFR 
46.215 that would require further analysis under NEPA.

Effects on the Energy Supply (E.O. 13211)

    This rule is not a significant energy action under the definition 
in E.O. 13211; the proposed rule is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy, and the 
rule has not otherwise been designated by the Administrator of Office 
of Information and Regulatory Affairs as a significant energy action. A 
statement of energy effects is not required.

List of Subjects in 36 CFR Part 52

    Commercial services, Government contracts, National parks, Visitor 
services.

    In consideration of the foregoing, the National Park Service is 
adding part 52 to title 36 of the Code of Federal Regulations to read 
as follows:

PART 52--VISITOR EXPERIENCE IMPROVEMENTS AUTHORITY CONTRACTS

Subpart A--Authority and Purpose
Sec.
52.1 What does this part cover?
52.2 What is the purpose of a commercial services contract?
52.3 How are terms defined in this part?
52.4 What types of commercial services contracts may the Director 
issue?
52.5 What types of professional services contracts may the Director 
issue?
Subpart B--Solicitation, Selection, and Award Procedures
52.10 How will the Director solicit responses for the award of a 
commercial services contract?
52.11 Where will the Director publish notice of the availability of 
a request for proposals?
52.12 How long will respondents have to submit a response?
52.13 How will the Director share information with potential 
respondents after issuing the request for proposals?
52.14 How will the Director evaluate responses and select the best 
one?
52.15 When will the Director reject a response?
52.16 What options does the Director have in accepting or rejecting 
a response?
52.17 Does this part limit the authority of the Director?
52.18 When must the selected respondent execute the contract?
52.19 When may the Director award the commercial services contract?
52.20 How will the Director solicit and award professional services 
contracts?
Subpart C--Contract Provisions
52.25 What is the term of a commercial services contract?
52.26 When may the Director terminate a contract?
52.27 May an operator or professional services provider receive 
leasehold surrender interest in capital improvements?
52.28 Are operator rates subject to approval by the Director?
52.29 May operators assign or encumber commercial services 
contracts?
52.30 How may commercial services contracts be funded?
Subpart D--Information and Access to Information
52.35 What records must the operator and professional services 
provider keep and what access does the Director have to records?

[[Page 5647]]

52.36 What access does the Comptroller General have to records kept 
by operators and professional services providers?
Subpart E--Miscellaneous
52.40 Does this part affect concession contracts under part 51 of 
this chapter?
52.41 Does the VEIA expire?
52.42 Severability.

    Authority:  54 U.S.C. 101931-101938.

Subpart A--Authority and Purpose


Sec.  52.1  What does this part cover?

    This part covers the solicitation, award, and administration of 
commercial services contracts and related professional services 
contracts. The Director solicits, awards, and administers these 
contracts on behalf of the Secretary of the Department of the Interior 
under the authority of the Act of August 25, 1916, as amended and 
supplemented, 54 U.S.C. 100101 et seq., and title VII of the National 
Park Service Centennial Act, 54 U.S.C. 101931-101938. All commercial 
services contracts and related professional services contracts must be 
consistent with the requirements of this part. These contracts will 
contain such terms and conditions as required by this part or law and 
as otherwise appropriate in furtherance of the purposes of this part 
and the Visitor Experience Improvements Authority (VEIA).


Sec.  52.2  What is the purpose of a commercial services contract?

    The National Park Service (NPS) will use commercial services 
contracts to expand, modernize, and improve the condition of commercial 
facilities and commercial services provided to visitors in a park area. 
Commercial services contracts are limited to those that are necessary 
and appropriate for public use and enjoyment of the park area in which 
they are located and consistent with the preservation and conservation 
of the resources and values of the park area.


Sec.  52.3  How are terms defined in this part?

    Award occurs when the Director and a selected respondent execute a 
commercial services contract or related professional services contract 
that creates legally binding obligations on the parties to the 
contract.
    Commercial services contract means a binding written agreement 
between the Director and an operator awarded under the authority of 
this part that authorizes the operator to provide services to visitors 
within a park area under specified terms and conditions.
    Contract means either a commercial services contract or a related 
professional services contract issued under the authority of this part. 
The Director may award contracts without regard to Federal laws and 
regulations governing procurement by Federal agencies, with the 
exception of laws and regulations related to Federal Government 
contracts governing working conditions and wage rates, including the 
Alaska National Interest Lands Conservation Act (16 U.S.C. 3101 et 
seq.), 40 U.S.C. 3141-3144, 3146, and 3147 (commonly known as the 
``Davis-Bacon Act''), and any civil rights provisions otherwise 
applicable thereto. Contracts as defined in this section are not 
contracts within the meaning of 41 U.S.C. 601 et seq. (the Contract 
Disputes Act) and are not service or procurement contracts within the 
meaning of statutes, regulations, or policies that apply only to 
Federal service contracts or other types of Federal procurement 
actions.
    Director means the Director of the National Park Service (acting on 
behalf of the Secretary), or an authorized representative of the 
Director, except where a particular official is specifically identified 
in this part.
    Operator means an individual, corporation, or other legally 
recognized entity that duly holds a commercial services contract.
    Professional services contract means a binding written agreement 
between the Director and a professional service provider awarded under 
the authority of this part that authorizes the service provider to 
provide hospitality consulting or other services to the National Park 
Service related to commercial services contracts.
    Professional services provider means an individual, corporation, or 
other legally recognized entity that duly holds a professional services 
contract.
    Qualified entity means an individual, corporation, or other legally 
recognized entity that the Director determines has the experience and 
financial ability to carry out the terms of a commercial services 
contract or professional services contract.
    Respondent means an individual, corporation, or other legally 
recognized entity that submits a response for a commercial services 
contract.
    Response means the information an individual, corporation, or other 
legally recognized entity provides to the National Park Service in 
response to a request for proposals.
    VEIA means the authority granted to the Director under title VII of 
Public Law 114-289 entitled ``Visitor Experience Improvements 
Authority'' and codified at 54 U.S.C. 101931-101938.
    Visitor services means accommodations, facilities, and other 
services determined by the Director as necessary and appropriate for 
public use and enjoyment of a park area provided to park area visitors 
for a fee or charge by an individual or entity other than the Director. 
Visitor services may include, but are not limited to, lodging, 
campgrounds, food service, merchandising, tours, recreational 
activities, guiding, transportation, and equipment rental. Visitor 
services also include the sale of interpretive materials or the conduct 
of interpretive programs for a fee or charge to visitors.


Sec.  52.4  What types of commercial services contracts may the 
Director issue?

    (a) Except as stated in paragraph (b) of this section, the Director 
may issue commercial services contracts for expanding, modernizing, and 
improving visitor services consistent with the VEIA. Examples of such 
contracts include, without limitation, management agreements and 
percentage lease agreements.
    (b) The Director may not award commercial services contracts:
    (1) For the provision of outfitter and guide services described in 
section 54 U.S.C. 101913(8); or
    (2) To authorize the provision of facilities or services for which 
the Director has granted to an existing concessioner a preferential 
right of renewal as defined in 54 U.S.C. 101911 and 101913.


Sec.  52.5  What types of professional services contracts may the 
Director issue?

    The Director may issue professional services contracts that support 
the National Park Service in soliciting, awarding, and managing 
commercial services contracts. Professional services contracts may 
include asset management agreements under which a service provider 
assists the National Park Service in overseeing and administering 
commercial services contracts but does not itself provide visitor 
services. Professional services contracts also may include contracts 
for the provision of other consulting services to the National Park 
Service such as developing requests for proposals, condition 
assessments, operational or financial analysis, accounting, and other 
related services.

Subpart B--Solicitation, Selection, and Award Procedures


Sec.  52.10  How will the Director solicit responses for the award of a 
commercial services contract?

    (a) The Director will award commercial services contracts through a 
competitive selection process. The Director will issue a request for

[[Page 5648]]

proposals inviting responses for consideration by the Director. The 
request for proposals will describe the terms and conditions of the 
proposed commercial services contract and the procedures the Director 
will follow to negotiate and award the commercial services contract.
    (b) The terms and conditions of the request for proposals and the 
proposed commercial services contract are not final until the Director 
awards the commercial services contract.
    (c) The solicitation process may include one or more phases, such 
as a request for qualifications followed by or in concert with a 
request for more detailed information through a request for proposals. 
The process could also include interviews with respondents and a 
negotiation phase.
    (d) If the entity that will become the operator is not established 
at the time of submission of a response, the response must contain 
assurances satisfactory to the Director that the entity that will 
become the operator will be a qualified entity as of the date of the 
award of the commercial services contract and otherwise have the 
ability to carry out the commitments made in the response.


Sec.  52.11  Where will the Director publish notice of the availability 
of a request for proposals?

    (a) The Director will publish notice of the availability of the 
request for proposals at least once in the System for Award Management 
(SAM) where Federal business opportunities are electronically posted or 
in a similar publication if SAM is no longer used. The Director may 
also publish notices electronically on websites, including social 
media, and in local or national newspapers or trade magazines.
    (b) The Director will make the request for proposals available upon 
request to all interested persons. The Director may charge a reasonable 
fee for a printed request for proposals.


Sec.  52.12  How long will respondents have to submit a response?

    The Director will define the process and the timeline for 
responding and entering into negotiations in the request for proposals. 
The Director will not consider untimely responses.


Sec.  52.13  How will the Director share information with potential 
respondents after issuing the request for proposals?

    If the Director shares material information directly related to the 
request for proposals with one potential respondent, the Director will 
share the same information with all potential respondents who have 
advised the Director of their interest in the request for proposals. 
This does not apply to information that is publicly available.


Sec.  52.14  How will the Director evaluate responses and select the 
best one?

    (a) The Director will apply the selection factors set forth in the 
request for proposals. The evaluation will include an assessment of the 
respondent's written submittals in response to the request for 
proposals and also may include information presented by the respondent 
during request for qualifications, interview, and negotiation phases. 
During this process, the Director may request written clarifications 
from any respondent that has submitted a timely response.
    (b) The Director will use selection factors to evaluate responses 
that include compliance with the requirements in the request for 
proposals, ability to comply with the terms and conditions of the 
commercial services contract, demonstration that the respondent is a 
qualified entity, demonstrated experience and prior performance in 
operating similar facilities and providing similar services, financial 
capability, and the proposed approach and methodology to deliver the 
services specified. The Director may include other factors that are 
identified in the request for proposals.
    (c) The Director must determine that the commercial services 
contract issued to the selected respondent will meet the objectives of 
expanding, modernizing, and improving the condition of commercial 
facilities and commercial services provided to visitors in the park 
area, and that such contract is both necessary and appropriate for 
public use and enjoyment of the park area, and consistent with the 
preservation and conservation of the resources and values of the park 
area.


Sec.  52.15  When will the Director reject a response?

    The Director will reject any response if the Director makes any of 
the following determinations:
    (a) The respondent is not a qualified entity.
    (b) The response is not responsive to the requirements in the 
request for proposals. A response is not responsive if the Director 
determines that it is not timely, does not meet the minimum 
requirements of the proposed contract, or does not provide the 
information required by the request for proposals.


Sec.  52.16  What options does the Director have in accepting or 
rejecting a response?

    (a) If no responsive responses are submitted, the Director may 
cancel the solicitation. After cancellation, the Director may establish 
new commercial services contract requirements and issue a new request 
for proposals.
    (b) The Director reserves the right to accept or reject any or all 
responses received as a result of the solicitation, to waive minor 
irregularities, or to negotiate with any respondent, in any manner 
necessary, to serve the best interests of the National Park Service.
    (c) No respondent or other person or entity will obtain compensable 
or other legal rights as a result of an amended, extended, canceled, or 
resolicited request for proposals for a contract.


Sec.  52.17  Does this part limit the authority of the Director?

    Nothing in this part may be construed as limiting the authority of 
the Director at any time to determine whether to solicit or award a 
contract, to cancel a solicitation, or to terminate a contract in 
accordance with its terms.


Sec.  52.18  When must the selected respondent execute the contract?

    The selected respondent must execute the contract within the time 
period established by the Director. If the selected respondent fails to 
execute the contract in this period, the Director may select another 
responsive response and enter into negotiations with that respondent, 
or may cancel the solicitation and choose to resolicit the contract.


Sec.  52.19  When may the Director award the commercial services 
contract?

    The Director may award a commercial services contract at any time 
after selecting the best response, the conclusion of negotiations, and 
execution of the contract by the respondent.


Sec.  52.20  How will the Director solicit and award professional 
services contracts?

    The Director will advertise each opportunity for professional 
services contracts at least once in the System for Award Management 
(SAM) where Federal business opportunities are electronically posted or 
in a similar publication if SAM is no longer used. The Director may 
also publish notices electronically on websites, including social 
media, and in local or national newspapers or trade magazines. The 
Director will evaluate and select professional services providers that 
are qualified entities following the procedures described in the 
advertised opportunity.

Subpart C--Contract Provisions


Sec.  52.25  What is the term of a commercial services contract?

    A commercial services contract will generally be awarded for a set 
term or

[[Page 5649]]

for a base term plus option years, with the total term not to exceed 10 
years.


Sec.  52.26  When may the Director terminate a contract?

    Contracts will contain appropriate provisions for suspension of 
operations and for termination by the Director for default, including, 
without limitation, unsatisfactory performance, or termination when 
necessary to achieve the purposes of the VEIA.


Sec.  52.27  May an operator or professional services provider receive 
leasehold surrender interest in capital improvements?

    No. Operators and professional services providers will not receive 
leasehold surrender interest in capital improvements, as those terms 
are defined at 54 U.S.C. 101915.


Sec.  52.28  Are operator rates subject to approval by the Director?

    (a) The Director may require prior approval of rates for services 
provided to visitors under a commercial services contract.
    (b) Generally, the Director will approve rates for services 
provided to visitors based upon market demand, although the Director 
may specify rates or rate methods for particular services based on 
factors other than market demand, such as to ensure affordability to a 
broad segment of visitors.


Sec.  52.29  May operators assign or encumber commercial services 
contracts?

    Commercial services contracts will include provisions that require 
the Director's approval prior to any assignment or encumbrance of the 
contract or any rights or interests under the contract to another 
operator.


Sec.  52.30   How may commercial services contracts be funded?

    Contract funds will be provided to the operators, who will be 
solely responsible for maintaining and expending the funds on agreed-
upon expenses. Commercial services contracts will clearly define what 
contract-related funds shall be considered revenue collected for the 
NPS and will provide for the periodic remittance of such funds to the 
NPS.

Subpart D--Information and Access to Information


Sec.  52.35   What records must the operator and professional services 
provider keep and what access does the Director have to records?

    Operators and professional services providers must keep any records 
that the Director may require for the term of the contract and for five 
calendar years after the termination or expiration of the contract to 
enable the Director to determine that all terms of the contract are or 
were faithfully performed. The Director, or an authorized 
representative of the Director, may access and examine all pertinent 
records, books, documents, and papers of the operator, professional 
services provider, and any subcontractor, parent, or affiliate of the 
operator or professional services provider (but with respect to parents 
and affiliates, only to the extent necessary to confirm the validity 
and performance of any representations or commitments made to the 
Director by a parent or affiliate of the operator or professional 
services provider). Further details on records maintenance and access 
will be set forth in and governed by the contracts themselves.


Sec.  52. 36   What access does the Comptroller General have to records 
kept by operators and professional services providers?

    The Comptroller General of the United States, or an authorized 
representative of the Comptroller General, may access and examine all 
pertinent records, books, documents, and papers of the operator, 
professional services provider, and any subcontractor, parent, or 
affiliate of the operator or professional services provider (but with 
respect to parents and affiliates, only to the extent necessary to 
confirm the validity and performance of any representations or 
commitments made to the Director by a parent or affiliate of the 
operator or professional services provider) going back five years from 
the closing date of the last fiscal year of the operator or 
professional service provider.

Subpart E--Miscellaneous


Sec.  52.40   Does this part affect concession contracts under part 51 
of this chapter?

    No, nothing in this part modifies the terms or conditions of any 
existing concession contract or the ability of the Director to enter 
into concession contracts under part 51 of this chapter. The 1998 Act 
(as that term is defined in part 51 of this chapter) remains in effect.


Sec.  52.41   Does the VEIA expire?

    Yes. The Director may not award a contract under the VEIA after 
December 16, 2025, unless extended by law. However, contracts awarded 
under the VEIA may continue beyond such date, subject to the terms of 
the particular contract.


Sec.  52.42   Severability.

    A determination that any provision of this part is unlawful will 
not affect the validity of the remaining provisions.

Shannon A. Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2025-01206 Filed 1-16-25; 8:45 am]
BILLING CODE 4312-52-P`