National Park Service: June 2011

Thursday, June 9, 2011

Support Job Creators & Target Austerity Measures by Eliminating Federal Funding to the Independence Visitor Center Corporation

Save Almost $1.0 Million Per Year in Wasteful Federal Funding of the Independence Visitor Center Corporation in Philadelphia

On April 15, 2011, President Obama signed the Fiscal Year 2011 appropriations Continuing Resolution ("CR") (PL 112-10) that has kept the Federal government operational for the next six months, ending a long national dispute over Fiscal Year 2011 spending. The CR will reduce the budgets of the National Park Service ("NPS") by millions of dollars including NPS operations by $7.0 million, construction by $30.0 million and recreation and preservation by $10.0 million (source: National Park Service Hospitality Association). Hopefully, the NPS responds to this budget decrease with greater honesty than it displayed in the past when it came to previous rounds of budget cuts.

As both Democrats and Republicans negotiate spending priorities and identify wasteful pork to be cut, both now and in future budgets, the Federally funded Independence Visitor Center Corporation ("IVCC"), which operates the Independence Visitor Center ("IVC") at Independence National Historical Park ("INHP"), a unit of the NPS, in Philadelphia would be a sensible, prudent and symbolic target for austerity measures. The IVC is owned and operated by the United States of America - National Park Service, which then sub-contracts with the IVCC, a taxpayer supported public charity, to manage the IVC that is staffed by NPS rangers. From November 19, 2001 to April 26, 2010, the IVCC's operation of the Independence Visitor Center was governed by the NPS's Special Use Permit through which the IVCC managed the IVC "subject to the supervision of the [NPS's] Superintendent" and "consent of, the National Park Service." Further, NPS officials have served on the Board of Directors of the IVCC.

The IVCC and National Park Service ("NPS") have a long history of failure to adhere to Federally mandated concessions laws and of anti-business practices that have stifled competition and economic opportunity at INHP. These practices have driven The Constitutional Walking Tour--a small business that creates jobs for Philadelphia-area residents--out of the Independence Visitor Center ("IVC") and into a strained economic condition. Amidst efforts to improve the economy and to reduce unemployment, it is absolutely essential that job-creating, private sector enterprises like The Constitutional Walking Tour not be hampered by oppressive, anti-growth regulations, especially those which are enforced randomly and arbitrarily.

Since 2001, the NPS has given more than $8.25 million in Federal appropriations to the IVCC. On February 3, 2011, the NPS filed a Notice of Intent to Award another $850,000.00 in Federal funds to fund the “Operation, Use and Maintenance” of the IVCC.

This $850,000.00, which is designated for "project activities without full and open competition," should be withheld for numerous reasons given the anti-business practices at the NPS and IVCC, the parties' false and misleading statements about the nature of their relationship, and the willful non-compliance of the NPS and the IVCC with their statutorily authorized Operating Agreement ("Operating Agreement") dated April 26, 2010.

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Business as Usual: The National Park Service Misled the Public and News Media

As new austerity measures take shape in terms of Federal budget cuts including for the National Park Service ("NPS"), it is instructive to review how the NPS previously acted in 2004 during previous rounds of budget cuts.

In 2004, the National Park Service ("NPS") engaged in a pattern of misrepresentation, deception, and obfuscation strikingly similar to the activities in which NPS now engages. The efforts at deception were most evident in the NPS Northeast Region, which includes Independence National Historical Park, a unit of the National Park Service, in which repeated violations of Congressional mandates, fair business practices, and Constitutional rights have occurred.

On February 20, 2004, Chrysandra Walter, NPS Deputy Director of the Northeast Region (Dennis Reidenbach, former Superintendent of Independence National Historical Park, would later become Regional Director for the NPS Northeast Region), sent a memo to NPS Superintendents in the NE region regarding budget cuts which advised them with guidance from Randy Jones, NPS Deputy Director:

"If you think that some of your specific plans will cause a public or political controversy, Marie [Rust, NPS Regional Director NE] and I need to know which ones are likely to end up in the media or result in a congressional inquiry…Randy [Jones, NPS Deputy Director] felt that the issuance of a press release was the most problematic… He suggested that if you feel you must inform the public… not to directly indicate that ‘this is a cut’ in comparison to last year’s operation… We all agreed to use the terminology of ‘service level adjustment’ due to fiscal restraints as a means of describing what action we are taking.” (emphasis added)

This NPS memo for the Northeast Region showed that NPS personnel had actively attempted to spin and mask National Park budget cuts in a way that prevented the public and the media from realizing the truth. The evident effort to deceive the public became more pronounced when comparing the NPS Northeast Region memo to the one directed towards the NPS Midwest Region. In the NPS Midwest Region memo, the focus was on trying to streamline budgets so as "to collectively use the 'cards dealt to us [NPS]' for the best overall advantage in preserving and protecting the resources of the National Park System." The goal of the Midwest memo was clear:

"In these tough times, building a solid, reasonable, and defensible rationale for what we choose not to do allows us to direct our limited resources to our core mission of protecting park resources and providing for visitor understanding and enjoyment."

Unlike the memo from the NPS Northeast Region, the NPS Midwest Region memo did not attempt to mislead the public or media, or to engage in political posturing and gamesmanship.

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Thursday, June 2, 2011

Disparate Treatment by the Independence Visitor Center Corporation and National Park Service Has Unfairly Deprived The Constitutional Walking Tour of Economic Impact from Twenty Million Visitors

Overview
On May 26, 2011, the Independence Visitor Center Corporation ("IVCC") at Independence National Historical Park in Philadelphia celebrated the twenty millionth visitor to the Independence Visitor Center ("IVC"). In its 2010 Annual Report, the IVCC touts its economic impact:

"In 2010, the IVCC influenced approximately $42 million in additional tourism spending--at attractions, restaurants, shops and more--and the positive impressions and memories generated have immeasurable benefits for years to come."

"22% of visitors report that they spend more in Philadelphia because of their visit to the Visitor Center. The average increase in expenditures was $155."

"As a result of their visit to the Independence Visitor Center, participants added an average of 2.3 attractions to their itinerary (average of 2008, 2009 and 2010)." (emphasis found in original quotation)

Unfortunately, The Constitutional Walking Tour ("The Constitutional") had no access to the vast majority of the twenty million visitors and resulting economic impact therefrom, because of the disparate treatment that The Constitutional had received at the hands of the IVCC and the National Park Service ("NPS"). In turn, these regulations which were applied randomly and arbitrarily had a pronounced detrimental effect on The Constitutional's business, ultimately driving The Constitutional from the Independence Visitor Center.

On February 20, 2008, Bill Moore, President and CEO of the IVCC, testified to Philadelphia City Council, "One of the hallmarks of a visit to any historic city is a great tour." The Constitutional Walking Tour agrees that a great tour can illuminate the incredible past of a historic city, especially Philadelphia which is America's Birthplace. Unfortunately, Mr. Moore, other IVCC officials, and the NPS have negotiated back-room deals and arbitrarily dictated which tours visitors should take, thereby suppressing consumer choice and the free market in the pursuit of random and unfair regulation.

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Background on The Constitutional’s disputes with the NPS and Independence Visitor Center

The Constitutional Walking Tour of Philadelphia (“The Constitutional”) offers guided walking tours of the Independence National Historical Park area by providing a primary overview of Independence Park and visiting more than 20 of Independence Park’s most historic sites including the Liberty Bell, Independence Hall, Carpenters’ Hall, Declaration House, etc.

From 2005 to 2010, the Independence Visitor Center Corporation sold tickets for The Constitutional’s various tours only at the IVC’s main information and sales desk. The IVCC has received a 20.0% (twenty percent) sales commission on each ticket that it has sold for The Constitutional (ranging on average in gross price from $12.50 to $17.50). Since 2005, The Constitutional has requested to also license a dedicated ticket sales booth from the National Park Service and IVCC on fair, reasonable and non-discriminatory terms commensurate with Ride the Ducks and Philadelphia Trolley Works, for example. Additionally, since 2005, The Constitutional has requested to also license marketing opportunities and commercial use authorizations from the National Park Service and IVCC on fair, reasonable and non-discriminatory terms.

The Independence Visitor Center (“IVC”) is owned and operated by the United States of America - National Park Service (“NPS”), which then sub-contracts with the Independence Visitor Center Corporation (“IVCC”), a taxpayer supported public charity, to manage the IVC.

The IVCC and NPS have preferenced third parties including Ride the Ducks and Philadelphia Trolley Works, and the IVCC and NPS have discriminated against The Constitutional Walking Tour. The National Park Service has enabled the creation of this unfair business environment. The National Park Service and the IVCC have ignored and circumvented Federal management and concessions laws for the sale of goods and services at Independence National Historical Park that require open, transparent, competitive and appealable processes awarding concessions contracts for the sale of goods and services including tours.

To facilitate the administration of the National Park Service System, the Secretary of the Department of the Interior, acting through the NPS, is authorized under the National Park Service Organic Act (“Organic Act”) to carry out twelve categories of activities, none of which include transferring administrative responsibility to a private party [i.e., IVCC] or engaging in cooperative administration with a private party [i.e., IVCC]. 16 U.S.C. § 1a-2(a)–(l). Rather than grant the NPS discretion in its dealings with park concessioners, Congress established “carefully controlled safeguards against unregulated and indiscriminate use” of the parks in the National Parks Omnibus Management Act of 1998 (“Management Act”), which governs all national park public accommodations, facilities, and services. 16 U.S.C. § 5951 et seq.; see also 36 C.F.R. Part 51.2 (“policy underlying concessions contracts”). The safeguards are not limited to nationwide policy: Congress also manages the parks with significant visitor traffic on a park-by-park basis. See, e.g., 16 U.S.C. §§ 21–40c (Yellowstone), §§ 91–110d (Mount Rainier), §§ 212–218a (Abraham Lincoln’s Birthplace), and §§ 410z–410z-5 (Boston National). One of the dozens of national parks managed by specific statutes is Independence National Historical Park (“INHP”). 16 U.S.C. §407m–407s. As such, compliance here going forward would require the NPS, first, to reassume from the private IVCC the NPS’s duties “to administer, operate, manage, lease, and maintain” properties at INHP pursuant to 16 U.S.C. § 407s; second, to award “all proposed concessions contracts … through a competitive selection process” pursuant to 16 U.S.C. § 5952; and, third, to issue commercial use authorizations in a rational manner pursuant to a reasonable interpretation of 16 U.S.C. § 5966(c).

The IVCC and NPS have arbitrarily and randomly selected business partners in a non-competitive and clandestine manner; as such, the actions of the NPS and IVCC have from an economics perspective stifled competition, innovation and consumer choice. Ultimately the IVCC’s actions have enabled prices to increase for its preferred vendors to strengthen the for-profits’ financial performance. Visitors to Philadelphia will be better served when the IVCC’s management, manners and methods are fundamentally changed. This would include having the National Park Service abide by Federal concessions management laws. Specifically, this will entail only having the NPS award concessions sales contracts and not having the IVCC involved in any of the selecting, awarding, contracting and managing of Independence Park’s third party concessions, including inside the Independence Visitor Center. This is the model that is practiced in virtually every other of the 390 (three hundred ninety) National Park Service units across the United States (in 49 states) including at Yosemite, Yellowstone, Statue of Liberty, etc. Additionally, visitors and all stakeholders will be better served once the operation of the taxpayer funded IVCC is totally transparent and accountable. While part of the issue centers on a publicly funded charity competing against the private sector (i.e., by offering guided tours and services), it more so has to do with the manner in which the IVCC and NPS operate and discriminate against third party concessionaires, tour operators and vendors in a random and arbitrary fashion (i.e., with the licensing and leasing ticket sales kiosks by the IVCC to third party companies, for example).