National Park Service Alaska Region Policy

COMMERCIAL USE AUTHORIZATION
SUSPENSION, RESTRICTION, REVOCATION, AND DENIAL POLICY

REGIONAL POLICY NUMBER 700-001
Effective date: January 1, 2020
Expiration Date: December 31, 2021

POINT OF CONTACT: Chief of Commercial Services, Interior Region 11 (Alaska)
AUTHORITY: Public Law 105-391, Section 418; 16 United States Code (USC) 1 and 3
DELEGATION: Superintendent

PURPOSE: This policy and procedure provides guidance to Alaska national park managers when considering whether to suspend, restrict or revoke a Commercial Use Authorization (CUA) and when considering whether to approve an application for a future CUA.

PERMIT CONDITIONS/PROVISIONS RELATED TO TERMINATION OR REVOCATION:
  • National Conditions, Item #9: This authorization may be terminated upon breach of any of the conditions herein or at the discretion of the park area Superintendent.

POLICY: This policy is intended to provide general guidance regarding the actions to be taken in the event of a permittee violation. The Superintendent may take a different action than that called for in this policy at his/her discretion. The Superintendent retains the authority to immediately suspend, restrict or revoke a CUA or deny a future CUA application. These actions are subject to the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. and therefore the Superintendent’s discretion is not unlimited. A Superintendent’s decision will be overturned by a court if it is found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.

Definitions

• Holder/Owner - a sole proprietorship, partnership, limited partnership, joint venture, or corporation including corporate officers and those shareholders who have a controlling interest in a corporation, which has applied for or received a CUA.
• Employee - a person in the service of the Holder/Owner under any contract of hire, express or implied, oral or written, where the Holder/Owner has the power or right to control and direct the Employee in the work performed.
• Suspension – a CUA Holder is temporarily prevented from operating in the park for a specified period of time and/or until specific conditions are met.
• Restriction – a reduction or limit in the operations authorized under a CUA, including but not limited to, geographic area, type or scale of service, or specific employee(s) permitted to operate within the park unit.
• Revocation – the CUA is terminated prior to the expiration date of the permit.
• Denial – a non-approval of a CUA application.

Violations
  1. Failure to comply with state or federal law, regulation or administrative action where a link exists between the offense and the business activity authorized, regardless of whether the violation occurred in a unit of the National Park System;
  2. Violation of 18 U.S.C. 1001, providing false information to any agency or department of the United States;
  3. Failure to comply with a federal or state health or safety code or regulation when conducting activities authorized by the CUA;
  4. Failure to comply with the provisions and conditions of the CUA, including national, regional, and park-specific conditions (refer to: https://www.nps.gov/locations/alaska/stipulations.htm);
  5. Failure to adequately and timely address material and documented operational concerns expressed by the National Park Service that may negatively impact visitor experience, park resources and/or staff and visitor safety.

Suspension, Restriction and Revocation
A CUA may be suspended, restricted, or revoked when the Holder/Owner or Employee commits a violation as defined above. The Superintendent will determine the appropriate administrative action regarding the violation based on the totality of the circumstances, including consideration of prior relevant violations. The following table may be used as a general guideline.

VIOLATION ACTION BY SUPERINTENDENT
First Violation A written warning.
Second Violation Suspension or restriction of the CUA.
Third Violation Revocation of the CUA.





A CUA may be suspended, restricted or revoked at any time, regardless of prior actions, depending on the severity of the violation. For example, a first offense of administrative non-compliance or violating a permit condition (e.g., failure to submit activity reports or fees on time, exceeding group size limits, etc.) may lead to a written warning, with multiple and repeated violations leading to a potential suspension and even revocation. A first offense violation that is more severe in nature (e.g., illegal activity, gross negligence that puts visitors or resources at risk, or non-compliance with multiple CUA stipulations) may lead to an immediate suspension or revocation.

A CUA may also be suspended or restricted when the Holder/Owner or Employee is under investigation or is charged for a criminal offense by state or federal authorities if a link exists between the conduct underlying the offense and the business activity authorized, regardless of whether the offense occurred in a unit of the National Park System. CUA revocation or re-instatement may result from the final adjudication.

Denial of a CUA Application

An application for a CUA may be denied if the Holder/Owner or any of the Holder/Owner’s current or proposed Employees committed a violation, as defined above. A Holder/Owner who has had a CUA revoked may be denied a new CUA for multiple years from the date of revocation, based on the severity of the violation(s).

Process
If the Superintendent believes a Holder/Owner has committed a violation, the Superintendent or his/her designee shall:
  1. Notify the Holder/Owner of the violation, in writing, as soon as possible or appropriate. It is in the best interest of the National Park Service and the Holder/Owner that the Holder/Owner be made aware of the violation, be given an opportunity to take corrective action to avoid future violations, and to provide an explanation of the circumstances that lead to the violation. If an Employee of the CUA Holder/Owner is charged with or has committed a violation (but not the Holder/Owner itself), the Employee will be identified on the violation and the CUA Holder/Owner shall be notified. The park shall also notify the Interior Region 11 (Alaska) Commercial Services Division. Regardless of who has committed the violation or is charged with doing so, all direction outlined in this Revocation Policy will still apply.
  2. Give the Holder/Owner an opportunity to explain the circumstances that led to the violation before taking final administration action at the park level. This does not preclude immediate suspension or restriction of the CUA when warranted.
  3. If the Holder/Owner is authorized to operate in more than one park, notify the other parks in Interior Region 11 (Alaska). A suspension, restriction, revocation or denial of a future CUA would likely apply to all services and parks authorized under the CUA; however, a more limited action may be appropriate as circumstances warrant. Notify the Holder/Owner of their right to appeal to the Regional Director.
Appeal Process
An appeal of the action may be made to the Regional Director, National Park Service, Interior Region 11 (Alaska). Such an appeal must be submitted in writing within 30 days of receipt of the decision. Appeals must set forth the facts and circumstances that the Holder/Owner believes support the appeal. The Holder/Owner may request an informal meeting to discuss the appeal with the Regional Director or his/her representative. After consideration of the materials submitted by the Holder/Owner and the National Park Service record of the matter, and meeting with the Holder/Owner if so requested, the Regional Director will affirm, reverse, or modify the decision appealed and will set forth in writing the basis of the decision. A copy of the decision will be forwarded to the Holder/Owner and will constitute the final administrative decision in the matter.

Last updated: February 19, 2020