National Park Service: Independence National Historical Park & Independence Visitor Center Corporation

Tuesday, December 23, 2008

Independence National Historical Park & Independence Visitor Center Corporation - Congressional Oversight Needed

Overview
In an April 3, 2008 editorial entitled "Mall Madness", The Philadelphia Daily News said that, "For nine years, the [Independence] visitor center and [National] Park Service have failed to come up with an agreement to run the center that might make the rules governing tour companies more consistent and less arbitrary... This is a shameful state of affairs." http://www.theconstitutional.com/news/inhp/mall.madness.pdf

Commentary (written by The Constitutional Walking Tour of Philadelphia)
Why is it that it took less time for America to land a man on the moon than it has for the National Park Service and the Independence Visitor Center Corporation ("IVCC") in Philadelphia to enter into an Operating Agreement? President Kennedy announced in May 1961 that he wanted to land a man on the moon and achieved that goal in July 1969. In contrast, on December 7, 1999, President Clinton signed the Gateway [Independence] Visitor Center Authorization Act (Public Law 106-131) which required that the IVCC enter into an Operating Agreement with Independence National Historical Park ("INHP"), a unit of the National Park Service. As we mark the law's ninth anniversary, no Operating Agreement has been signed, in spite of being statutorily-mandated.

The lack of an Operating Agreement is counter-productive and detrimental to the mission and effective transparent implementation thereof for both the IVCC and INHP. Without any written, detailed and publicly available Operating Agreement, then specific management activities and services are impossible to objectively track. Additionally, the flagrant non-compliance of the INHP and IVCC to execute this Operating Agreement has been detrimental to The Constitutional Walking Tour and other vendors since that Operating Agreement would presumably set some formal ground rules for the equitable treatment and rights of vendors at the Independence Visitor Center. In the absence of any Operating Agreement, The Constitutional has been unfairly treated and has been beholden to the wide discretionary powers of the INHP and IVCC that are used randomly, arbitrarily and capriciously.

Our Founding Fathers taught us that checks and balances are required for our system of government to work. However, a closer look at the IVCC reveals that there are few, if any, checks and balances with the IVCC and the National Park Service to ensure that the taxpayers' investment in these public trusts is effective, efficient and fair such that the Independence Visitor Center works as the United States Congress intended it to work.

In lieu of an Operating Agreement, the current extent of a written arrangement between the parties boils down to a bare-bones Permit issued by INHP, which has been extended at least nineteen times since 1999 in order to "allow additional time to finalize a formal [Operating] Agreement between the National Park Service and the Independence Visitor Center Corporation."

Huh?

Because the Independence Visitor Center is constructed on public land, built with local and Federal taxpayers' dollars, owned by the United States Government and administered by the National Park Service, such unchecked discretionary authority is of great concern.

Additionally, it is of great concern that the rules applied to third party tour operators and vendors by the IVCC and INHP are done so quite subjectively, arbitrarily and inequitably, regardless of the third party's value proposition in terms of "park relevance" and "visitor experience." Accordingly, without any Operating Agreement, the visitor experience suffers. Moreover, INHP and the IVCC have used their wide discretionary authority to turn the taxpayer supported Independence Visitor Center into a federally subsidized bus depot under the false pretense that Public Law 106-131 authorizes the IVCC to conduct revenue producing activities toward the goal of becoming economically self-sustaining.

In this day and age, being economically self-sustaining is a laudable goal, but that is placing the cart before the horse. The purpose of the law was "to authorize the Secretary of the Interior to enter into a cooperative agreement with the Gateway Visitor Center Corporation to construct and operate a regional visitor center on Independence Mall."

This lack of an Operating Agreement has resulted in the IVCC selling itself out to a few hand selected vendors via licensing fees in exchange for prominent tour staging and sales locations to Philadelphia's two dominant motorized tour operators, resulting in preferential treatment of motorized tours over walking tours. Given that Philadelphia is one of America's most walkable cities, and that walking tours are more eco-friendly than carbon emitting motorized tours, this is not very environmentally responsible of the IVCC and INHP, and moreover, it is detrimental to the visitor experience.

Mary Bomar, Director of the National Park Service and former Superintendent of INHP, has called INHP "the premier cultural park in the National Park System." In spite of that, this management failure has occurred on her watch. In the absence of an Operating Agreement, Congress should now provide much needed oversight.

It is our understanding that $850,000.00 per year has been paid by the National Park Service through Federal appropriations to the IVCC from as early as 2003 for the operations of the Independence Visitor Center, and to date, this has totaled at least $6.4 million. In addition, it is our understanding that there is $6.0 million in Federal funding currently pending for INHP and/or the IVCC in Philadelphia for the renovation of Franklin Court, one of INHP's sites, which would be developed and administered by the IVCC.

What is also even more curious about the opaque relationship between the IVCC and INHP is that there has (supposedly) been a detailed written Operating Agreement in place since at least 2003, but one that is confidential and not available for public inspection. In all of the annual audited Financial Statements of the IVCC dating back to 2003 and up through the 2007 audited Financial Statements, the one most recently available, the independent reports have repeatedly stated,

"The National Park Service ("NPS") and IVCC have substantially established a management agreement between the parties whereas IVCC will administer and manage the property [Independence Visitor Center]. The agreement calls for the NPS to make an annual payment of $850,000.00 [eight hundred and fifty thousand dollars] to IVCC in exchange for the services provided by the IVCC more fully described in the agreement. Payments are subject to annual federal appropriations. A representative of the NPS services as a non-voting member on the Board of Directors."

For each year ended 2006, 2005, 2004 and 2003, the audited Financial Statement reports also state "IVCC has recorded revenues of $850,000.00 [eight hundred and fifty thousand dollars] from the NPS under this service agreement." Note: according to the IVCC's 2007 Annual Report, both Mary A. Bomar, Director of the NPS, and Dennis R. Reidenbach, then Superintendent INHP (currently Regional Director, Northeast Region, NPS) served on the IVCC's Board of Directors.

In spite of numerous document requests including Freedom of Information Act ("FOIA") requests and appeals by The Constitutional, neither the National Park Service nor IVCC have provided the supposed "management agreement" that has been "substantially established" since 2003, as referenced in the IVCC's audited financial statements.

As previously stated, INHP has issued at least nineteen separate extensions to the Special Use Permit with the IVCC. This is another glaring red flag since one has to wonder why it has been necessary for INHP to have issued nineteen separate Special Use Permit extentions to the IVCC if the INHP and IVCC Operating Agreement has been "substantially established" since 2003?

In the absence of a publicly available detailed Operating Agreement, one can reasonably argue that NPS and IVCC are complacent with the status quo of not having a detailed public available Operating Agreement, and/or they are unwilling and/or unable to reach an Operating Agreement with one another and/or there is something to hide. If the NPS and IVCC are indeed willing parties, acting in good faith with nothing to hide, then there is no reasonable justification for how and why more than nine years have passed since Public Law 106-131 was enacted without a detailed long term Operating Agreement available for public inspection.

For the reasons outlined herein, and in the spirit of the Obama Administration reviewing the Federal budget page by page, and line by line, we feel that no further Federal appropriations should be approved going forward for INHP and/or the IVCC until INHP and the IVCC comply with the evident Congressional intent of the Public Law 106-131 of 1999 and start treating all qualified tour operators in a fair, open and transparent manner.

It does not take a rocket scientist to know that the time has come for accountability and transparency with the IVCC and INHP, all of which will benefit the entire National Park ecosystem including its millions of visitors. With the spirit of change being ushered in with the Obama Administration, the IVCC and INHP should finally execute and publish their detailed long term Operating Agreement immediately that according to the IVCC's statements, for which NPS has provided its approval, has been substantially completed since 2003.

NOTE: Copies of the documents referenced in the Commentary above are available at http://www.TheConstitutional.com/nps

For more information, contact info@theconstitutional.com or 215.525.1776.

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).