806 NATIONAL PARK HOSPITALITY ASSN. v.
DEPARTMENT OF INTERIOR Opinion of the Court
§ 3, 39 Stat. 535. Such "privileges, leases, and permits" have become embodied in national parks concession contracts.
The specific rules governing national parks concession contracts have changed over time. In 1998, however, Congress enacted the National Parks Omnibus Management Act of 1998 (1998 Act or Act), Pub. L. 105-391, 112 Stat. 3497 (codified with certain exceptions in 16 U. S. C. §§ 5951-5966), establishing a new and comprehensive concession management program for national parks. The 1998 Act authorizes the Secretary of the Interior to enact regulations implementing the Act's provisions, § 5965.
NPS, to which the Secretary has delegated her authority under the 1998 Act, promptly began a rulemaking proceeding to implement the Act. After notice and comment, final regulations were issued in April 2000. 65 Fed. Reg. 20630 (2000) (codified in 36 CFR pt. 51). The regulations define the term "concession contract" as follows:
"A concession contract (or contract) means a binding written agreement between the Director and a concessioner . . . . Concession contracts 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." 3 36 CFR § 51.3 (2002).
Through this provision NPS took a position with respect to a longstanding controversy with the Department of Interior's Board of Contract Appeals (IBCA). Beginning in 1989, the IBCA ruled that NPS concession contracts were subject to the CDA, see R & R Enterprises, 89-2 B. C. A., ¶ 21708, pp. 109145-109147 (1989), and subsequent attempts by NPS to convince the IBCA otherwise proved unavailing, National
3 For ease of reference, throughout this opinion we will refer to the second sentence quoted in the text as § 51.3.
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