NPHA Comments on NPS 2006 Management Policies:
February 17, 2006
National Park Service
Office of Policy
Main Interior Building
1849 C Street NW
Washington, D.C. 20240
Dear Mr. Fagan:
Please accept these comments on behalf of the National Park Hospitality Association (“NPHA”) on the Draft 2006 National Park Service Management Policies. NPHA is trade association of businesses providing facilities and services, such as lodging, restaurants, and a host of other services, to people visiting our National Parks and other federal lands. NPHA believes our National Parks and other federal lands are our nation’s treasures and should be preserved for and enjoyed by this and future generations. We appreciate the opportunity to comment on the Draft 2006 Management Policies.
We are happy to see that the National Park Service (“NPS”) is opening up these policies again for review. We are pleased to see what seems to be the beginning of a fundamental shift in NPS philosophy regarding the dual mission of the NPS - a shift that places equal importance on the role of providing national parks for visitor enjoyment along with their conservation – as mandated by the law. NPHA welcomes this shift and the many other necessary and long overdue changes found in the Draft 2006 Management Policies.
NPHA supports a balance between visitor use and enjoyment and park resource protection as mandated by the National Park Service Organic Act of 1916. Although at times difficult to achieve, the balance between visitor enjoyment and resource protection should be the fundamental principle behind all NPS policies and decisions. We believe that these Draft Management Policies move in a direction to better strike this balance and, thus, conform to the original intent of the Congress when the NPS was established in 1916. Movement in this direction will better serve the American public and international visitors to our National Parks while adequately and appropriately protecting the resources for which these parks were established.
We will now make specific comments on issues of concern and importance to us contained in the Draft 2006 Management Policies and concentrate on those particular chapters which have significant relevance to the NPHA.
In the Introduction, again in Section 1.1, and elsewhere in the document, the NPS maintains that the words “conserve”, “preserve”, and “protect” all have the same meaning relative to these policies and can be used interchangeably. The NPS bases this on legislative history and case law. However, we do not believe that the legislative history is so clear as to give these terms identical meanings and, although the NPS says that the choice of any of these words is not intended to imply a greater or lesser restriction on opportunities for visitor enjoyment, we do not believe that this will be the case. In fact, the interchangeability of these words has led to the frequently used notion of the predominance of resource protection over visitor enjoyment in nearly all circumstances. This has special importance in regard to the 1916 Organic Act, which clearly uses the word “conserve” relative to the fundamental purposes for any park’s establishment, and the interchangeable use of these words, we believe, has moved away from the delicate balance sought by the Congress when enacting the Organic Act. We recommend that the NPS refrain from interchangeably using these words in drafting these management policies and more carefully chose the appropriate term.
Also in the Introduction, the NPS defines the word “impairment” to mean a significant impact that, in the judgment of the responsible NPS manager, would harm the integrity of the park resources. However, “impairment” should be interpreted as an impact that is long in duration and should carry with it more of a meaning of permanence, i.e., the impact would be severe enough to cause a long-lasting effect on park resources. Temporary or short-term impacts to park resources and impacts that can be reversed within a short time period should not be considered “impairments”. We believe that this interpretation is more in line with the Congressional intent of the 1916 Organic Act. We recommend that the Park Service narrow the definition of “impairment” by including the duration and permanence of the significant impact.
Further, when explaining “Unacceptable Impacts” in the Introduction, the Park Service seems to have created another category of impacts that is, for all intents and purposes, impairment. This seems to revise the law and is confusing. For example, in Section 18.104.22.168 (Park Purposes and Legislatively Authorized Uses) the Draft 2006 Management Policies state that “park managers have the discretionary authority to allow and manage the use, provided that the use will not cause impairment of or unacceptable impacts”. The legal standard, as set forth by the 1916 Organic, is impairment. No other word or words are used. We recommend that the Park Service adhere only to the use of the term “impairment” when assessing resource impacts.
In Section 1.1 (The National Park Idea), and many times elsewhere in this document, when explaining the intent of the 1916 Organic Act, the NPS states that this Act intended to conserve the resources and values in these areas and to leave them unimpaired for future visitor enjoyment. However, the Organic Act never mentions the word “values” or “value”. And well it shouldn’t have. Values are both individual and societal choices and are manifestations that change over time and, thus, impossible to “conserve” as intended by the Organic Act. We believe that they are equally impossible to leave “unimpaired”. In fact, the Organic Act was very specific in the purpose for establishing National Parks to “conserve the scenery and the natural and historic objects and the wild life [sic] therein …”. Maintaining that NPS has authority under the Organic Act to conserve or even protect “values” is just plain in error. We recommend that the NPS strike the word “value” in the context of using it in conjunction with the Organic Act in this paragraph and everywhere else there is a similar reference.
Furthermore, it is our opinion that the use of the word “value” as used in the 1978 Redwoods amendment to the 1970 National Park Service General Authorities Act was not, in and of itself, something to protect. Rather, the Congressional intent lies more in the intrinsic value of the National Park Service and its resources to the people of the United States. In other words, the people value the idea of a National Park Service and the protection of resources that are contained within any particular national park and not any single “value” that, today, is attributed to a national park and, thus, “protected” by the NPS. It is clear that the intent of the Congress was to conserve and protect superlative tangible resources and not to protect an abstract idea which may, and many times does, change over time as any particular society evolves.
Moreover, “values” are totally subjective by their nature. What is “valuable” to one person or group or Administration, for that matter, may not be “valuable” to another. What is “valuable” to one park unit may not be “valuable” to another. This makes protecting these “values” service-wide impossible. The protection, thus, boils down to the park superintendent making a judgment call as to what is or is not “valuable” to that park. We do not believe that the Congress meant to give this authority to park superintendents.
Therefore, we recommend that the words “value” and “values” not be used in conjunction with any general authorities in the management policies and only be used for individual parks that establish a “value” in the relevant enabling legislation. We also recommend that the NPS use the words “value” and “values” very sparingly throughout the Draft Management Policies when they are used.
In Section 1.4.3 (The NPS Obligations to Conserve, etc.), when addressing enjoyment, the management policies state that it “includes enjoyment both of people who visit the parks and by those who appreciate them from afar”. We are unaware of any statute or regulation that supports this latter supposition. We recommend that this reference to “those who appreciate them from afar” be withdrawn from the management policies.
In this same section (1.4.3) the management policies state that the enjoyment of the parks is for “all people of the United States …”. We would like to point out that there are millions of international visitors to our national parks who also enjoy them. These visitors also significantly contribute to the NPS, the concessions industry, and economies of the surrounding communities. We recommend that the management policies also include international visitors as people who enjoy national parks.
The NPS points out in Section 22.214.171.124 (Business-like Concession Program) that they will seek better returns to the federal government from concessions franchise fees as well as requiring the improved maintenance of facilities. Although not disagreeing with this statement, we would like to point out that, as per the National Parks Omnibus Management Act of 1998, franchise fees will remain subordinate to the objectives of protecting and preserving park areas and of providing necessary and appropriate services for the visitors at reasonable rates. We would like to have this reflected in the management policy statement. We also would like to state that the concessioners also would like to see improved facility maintenance, but that the costs of the improvements need to be offset (or other accommodations made) to the concessioner by the NPS.
Section 126.96.36.199 also mentions that the NPS will seek outside reviews and recommendations for improving the concessions program. NPHA would like to add that our association and the individual concessioners can greatly assist the NPS and make recommendations to them regarding concession program improvements. In fact, we can be a very valuable resource to the NPS and look forward to working cooperatively with them to make the concessions program function better and more effectively. We hope the NPS considers us as partners in improving the concessions program.
In the same light, Section 1.8 (Civic Engagement) states the NPS will embrace civic engagement as a fundamental practice and that these relationships extend to all communities. As most of the concessioners are an important part of communities having significant ties with many national parks, we believe that concessioners can be very helpful to the NPS in developing and implementing many of their programs. We hope that the NPS will include concessioners in building these very important community relationships.
In the introduction to Chapter 4 (Natural Resource Management) the management policies state in the third paragraph that “values” are to be considered “natural resources”. As we have mentioned before, “values” are not “natural resources” and are not “objects” to be protected according to the Organic Act. We strongly urge the NPS to strike “values” from inclusion as natural resources in this chapter and everywhere else in this document that the NPS considers it a natural resource.
In the cover page summary statement to Chapter 8 (Use of the Parks), the policies mention that national parks belong to all Americans and that all Americans should feel welcome to visit, enjoy, and experience the parks. Although agreeing with this statement, we believe it only goes part of the way. We want to emphasize again that the enjoyment and experience of our national parks is not constrained just to Americans, but rather also to the international visitors to our parks, as well. We hope that the NPS will account for and recognize the important part played by the international visitors in these management policies.
In Section 8.2 (Visitor Use) the management policies speak to the need of the NPS managers to actively solicit participation by representative groups in the planning processes that might affect their interests. We hope that the NPS makes it a priority to contact concessioners during the park planning process and takes advantage of concessioners’ knowledge and experience when formulating their management plans.
In Section 188.8.131.52 (National Park Reservation Service), it is unclear whether this provision applies to concessioner-provided camping and lodging facilities. The NPHA recommends that this section be revised to make it clear that it does not apply to concessioners. Reservations services and related issues usually are covered in the concessions contracts or related operating plans. Furthermore, the NPHA would caution the NPS against forcing concessioners to utilize the NRRS. Most concessioners provide responsive, efficient reservations services free of charge to the public, and there would be no benefit to the NPS or the public in mandating that reservations be taken for a fee through the NRRS.
The comments concerning Section 10.1.1 below also apply to the language in Section 8.12 (Leases and Cooperative Agreements).
We are glad to see the changes made by the NPS in Chapter 9 (Park Facilities), including the rewrite of the first paragraph. The changes are, overall, much improved in contrast to the 2001 Management Policies. We believe that the changes made in the Draft 2006 Management Policies take a more realistic view, have incorporated a much more business-like approach in managing the parks, and have better reflected the intention of the Organic Act as compared to the 2001 Management Policies.
For example, in Section 9.1.1 (Facility Planning and Design) the NPS has included “providing opportunities for visitor use and enjoyment” along with “conservation of park resources and values” within their primary consideration of facility planning and design. This small, but very important, addition to this section was omitted by the 2001 Management Policies, which distanced itself numerous times from the dual mission set forth by the Organic Act. We commend the NPS for making this basic but important change, which now comports much better to the law.
Another example can be found in a number of places in Chapter 9 regarding the use of the term “conservation” rather than “protection” that was found in the 2001 Management Policies. We feel that the use of the term “conservation” is much more appropriate and follows the letter and spirit of the law better than the term “protection”. Although seeming a small change, we feel that the use of the proper and appropriate words in the Draft 2006 Management Policies, like “conservation” from “protection”, is indicative of a change in the broader philosophy of managing the national parks. We applaud the NPS for recognizing this and making this needed change.
We also commend the NPS on their use of and addition of the terms “to the extent practicable” as used in this Chapter and throughout the document. We believe that using these terms gives needed and necessary flexibility to the NPS for their facilities management, design, and siting. It also instills practicality into the Draft 2006 Management Policies which, we believe, was lacking in the 2001 Management Policies.
In Section 184.108.40.206 (General), the NPS speaks to the general maintenance of park facilities. Since many concessioners also have an interest in the maintenance of park facilities, we urge the NPS, when appropriate, to share facilities maintenance information and planning with the relevant concessioners. We believe doing so will benefit the NPS, the concessioners, and ultimately and most importantly the park visitor, and so we recommend including this concept in the Draft 2006 Management Policies.
We are pleased with the changes in Section 9.2 (Transportation Systems). It cannot be debated that roads and the supporting infrastructure are an absolute necessity for people who want to visit our national parks. Without them the NPS could not fulfill their mission to conserve park resources for the enjoyment of people. In short, people need roads to access nearly every one of our national parks. Furthermore, good roads make the visit enjoyable. Thus, we are glad to see an especially important change in the first paragraph which added “providing opportunities for visitor use and enjoyment” when planning for and implementing transportation systems within the national parks.
We are also happy to see changes in Section 9.2.5 (Parking Areas). The 2001 Management Policies directed the NPS to limit parking areas “to the smallest size appropriate.” The Draft 2006 Management Policies eliminate this restrictive provision and give the NPS much more flexibility in the siting of new parking areas. We believe this will enhance visitor enjoyment of the parks.
In Section 9.3.2 (Overnight Accommodations and Food Services), we recommend that the NPS add “or when the accommodations and food services have already been established within the park boundaries” to the end of the third sentence of the first paragraph. Facilities already established within the park boundaries are not accounted for the way the sentence is currently written.
The NPS, in Section 220.127.116.11 (Campgrounds), discusses “natural darkness” in the third paragraph. We are unaware of any other kind of darkness when visitors are outside and recommend striking the word “natural”.
Overall, Draft 2006 Management Policies Chapter 10 (Commercial Visitor Services) is much improved over the 2001 Management Policies, and we applaud the NPS for making the changes. We do, however, have a few specific comments.
In Section 10.1.1 (Leasing), the NPS states that they may enter into non-competitive leases with nonprofit organizations or other units of government if the responsible manager determines that the nonprofit or governmental use of the property will contribute to the purposes and programs of the park. However, this language conflicts with the mandate found in P.L. 105-391, the National Parks Omnibus Management Act of 1998. In the statute, there is no distinction between classes of lessees in terms of lease requirements. In fact, the statute goes on to state that “[t]he Secretary shall promulgate regulations implementing this subsection that includes provisions to encourage and facilitate competition in the leasing process .…” (Sec. 802(a)(4)(C)). We recommend that the NPS be fair and lease properties competitively, regardless of whether the prospective lessee is a nonprofit organization. The Draft 2006 Management Policies seem to have superseded this legal requirement by authorizing noncompetitive leases to nonprofit organizations.
In Section 10.2.3.1 (Terms and Conditions of Contracts/Authorizations) the NPS describes the terms and conditions of concessions contracts and states that “the term of concession contracts should be as short as is prudent, taking into account the financial requirements of the concession contract, the required construction of capital improvements, resource preservation and conservation, visitor needs, and other factors that the Director may deem appropriate”. We recommend that the NPS add to this list of considerations “the opportunity for a concessioner to make a net profit”. This is an important element in any concessions contract and acknowledges that the concessioner frequently takes extraordinary risks in providing the concession services and complying with the conditions of the contract. A similar consideration (potential for return on investment) is specifically mentioned as a factor in determining a proper lease term in Sections 8.12 and 10.1.1 of the Draft 2006 Management Policies. We also ask that the NPS add to the list of considerations “avoiding frequent disruptions incident to concessioner turnover”. As a practical matter, the NPS must realize that changing concessioners is often a difficult process, given many parks’ remote locations, seasonal operating schedules, severe weather, and staff shortages. We also recommend that the NPS strike the word “preservation” in that sentence in order to be consistent throughout the document.
In Section 10.2.3.6 (Multi-park Contracts), the policies state that under some instances the bundling of concession agreements into a single contract may be appropriate. We ask that this section clarify that even if the bundled contract combines concessions from multiple parks, the concessioner may pledge the entire contract as collateral for loans made: (a) to acquire the bundled contract; (b) to construct improvements in one or all bundled parks; or (c) to finance other activities as permitted by applicable laws and regulations. On the other hand, if this section is not intended to permit bundling of concessions from different parks, this should be made clear.
The NPS states in the second paragraph of Section 10.2.4.5 (Merchandise) that the concessioner should “ensure that merchandise sold or provided reflects the significance of the park and promotes the conservation of … park resources and values.” Although we do not entirely disagree with this sentence, it does not account for service amenity items such as toiletries, soda, candy, and other snacks, over-the-counter medicines, and a host of other items. We recommend that this sentence be reworded to reflect that some items can be sold by concessioners that do not, necessarily, promote park resources.
In the third paragraph of Section 10.2.4.5, the NPS has deleted the last sentence concerning foreign merchandise. Does this mean such merchandise could now be prohibited in some parks? If foreign merchandise is prohibited in some parks but not in others, this would seem a rather arbitrary result. If the NPS is interested in encouraging the sale of “Made-in-America” merchandise, the NPHA suggests an incentive-based approach, such as adding “American-made handcrafts” to the list of merchandise exempted from payment of franchise fees. Currently, the list includes only native Hawaiian, Alaskan, US Indian, and Samoan handcrafts.
We recommend that Section 10.2.4.7 (Rates) be modified to acknowledge and encourage expansion of the new rate-setting programs successfully implemented by the NPS for food & beverage and retail concessions in some parks. These programs, such as the Core Menu program and the Competitive Market Declaration program, have been welcomed by concessioners and park visitors alike.
This concludes our remarks on the Draft 2006 Management Policies. We thank the NPS for the opportunity to comment on this important document. Many of the changes were needed and we commend the NPS for making the necessary and appropriate changes to the 2001 Management Policies, thereby greatly improving this document.
Andrew N. Todd, Chairman
National Park Hospitality Association