Calendar No. 360

103D CONGRESS

2D SESSION S. 208

[Report No. 103–226]

A BILL

To reform the concessions policies of the National

Park Service, and for other purposes.

FEBRUARY 11 (legislative day, JANUARY 25), 1994

Reported with an amendment
II

Calendar No. 360

103D CONGRESS

2D SESSION S. 208

[Report No. 103–226]

To reform the concessions policies of the National Park Service, and for

other purposes.

IN THE SENATE OF THE UNITED STATES

JANUARY 26 (legislative day, JANUARY 5), 1993

Mr. BUMPERS (for himself, Mr. PRYOR, Mr. AKAKA, Mr. METZENBAUM, Mr.

SARBANES, Mr. BOND, Mr. PELL, Mr. EXON, Mr. LIEBERMAN, Mr.

LEAHY, Mr. SIMON, Mr. DASCHLE, Mrs. KASSEBAUM, Mr. CHAFEE, Mr.

KOHL, Mr. DANFORTH, Mr. DORGAN, Mr. JEFFORDS, Mr. KERRY, Mr.

BRADLEY, and Mr. COCHRAN) introduced the following bill; which was

read twice and referred to the Committee on Energy and Natural Resources

FEBRUARY 11 (legislative day, JANUARY 25), 1994

Reported by Mr. JOHNSTON, with an amendment

[Strike out all after the enacting clause and insert the part printed in italic]

A BILL

To reform the concessions policies of the National Park

Service, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
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1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the ‘‘National Park Service

3 Concessions Policy Reform Act of 1993’’.

4 SEC. 2. FINDINGS AND POLICY.

5 (a) FINDINGS.—In furtherance of the Act of August

6 25, 1916 (39 Stat. 535), as amended (16 U.S.C. 1, 2–

7 4), which directs the Secretary of the Interior to admin8 ister areas of the National Park System in accordance

9 with the fundamental purpose of preserving their scenery,

10 wildlife, natural and historic objects, and providing for

11 their enjoyment in a manner that will leave them

12 unimpaired for the enjoyment of future generations, the

13 Congress finds that the preservation of park values re14 quires that public accommodations, facilities, and services

15 be limited to those necessary and appropriate to carry out

16 the approved management objectives for each park.

17 (b) POLICY.—It is the policy of the Congress that—

18 (1) public facilities or services shall be provided

19 within a park only when the private sector or other

20 public agencies cannot adequately provide such fa21 cilities or services in the vicinity of the park;

22 (2) if the Secretary determines that public fa23 cilities or services should be provided within a park,

24 such facilities or services shall be limited to locations

25 and designs consistent with the highest degree of re-
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1 source preservation and protection of the aesthetic

2 values of the park;

3 (3) such facilities and services should be award4 ed through competitive bid procedures; and

5 (4) such facilities or services should be provided

6 to the public at reasonable rates.

7 SEC. 3. DEFINITIONS.

8 As used in this Act, the term—

9 (1) ‘‘bid’’ means the complete proposal for a

10 concessions contract offered by a potential or exist11 ing concessioner in response to the minimum re12 quirements for the contract established by the Sec13 retary;

14 (2) ‘‘concessioner’’ means a private person, cor15 poration, or other entity to whom a concessions con16 tract has been awarded;

17 (3) ‘‘concessions contract’’ means a contract,

18 including permits, to provide facilities or services, or

19 both, at a park;

20 (4) ‘‘facilities’’ means improvements to real

21 property within parks used to provide accommoda22 tions, facilities, or services to park visitors;

23 (5) ‘‘park’’ means a unit of the National Park

24 System; and
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1 (6) ‘‘Secretary’’ means the Secretary of the In2 terior.

3 SEC. 4. REPEAL OF CONCESSIONS POLICY ACT OF 1965.

4 The Act of October 9, 1965, Public Law 89–249 (79

5 Stat. 969, 16 U.S.C. 20–20g), entitled ‘‘An Act relating

6 to the establishment of concession policies administered in

7 the areas administered by the National Park Service, and

8 for other purposes’’, is hereby repealed. The repeal of such

9 Act shall not affect the validity of any contract entered

10 into under such Act, but the provisions of this Act shall

11 apply to any such contract except to the extent such provi12 sions are inconsistent with the express terms and condi13 tions of the contract.

14 SEC. 5. CONCESSIONS POLICY.

15 Subject to the findings and policy stated in section

16 2 of this Act, and upon a determination by the Secretary

17 that facilities or services are necessary and appropriate for

18 the accommodation of visitors at a park, the Secretary

19 shall, consistent with the provisions of this Act, laws relat20 ing generally to the administration and management of

21 units of the National Park System, and the park’s general

22 management plan, authorize private persons, corporations,

23 or other entities to provide and operate such facilities or

24 services as the Secretary deems necessary and appro25 priate.
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1 SEC. 6. COMPETITIVE BID PROCEDURES.

2 (a) IN GENERAL.—Except as provided in subsection

3 (b), and consistent with the provisions of subsection (f),

4 any concessions contract entered into pursuant to this Act

5 shall be awarded only through competitive bid procedures.

6 Within 180 days after the date of enactment of this Act,

7 the Secretary shall promulgate appropriate regulations es8 tablishing such procedures.

9 (b) TEMPORARY CONTRACT.—Notwithstanding the

10 provisions of subsection (a), the Secretary may waive com11 petitive bid procedures and award a temporary concessions

12 contract in order to avoid interruption of services to the

13 public at a park.

14 (c) PUBLICATION OF CONTRACT REQUIREMENTS.—

15 Prior to soliciting bids for a concessions contract at a

16 park, the Secretary shall publish in the Federal Register

17 the minimum bid requirements for such contract, as set

18 forth in subsection (d). The Secretary shall also publish

19 the terms and conditions of the previous concessions con20 tract awarded for such park, and such financial informa21 tion of the existing concessioner pertaining directly to the

22 operation of the affected concessions facilities and services

23 during the preceding contract period as the Secretary de24 termines is necessary to allow for the submission of com25 petitive bids. Any concessions contract entered into pursu26 ant to this Act shall provide that the concessioner shall
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1 waive any claim of confidentiality with respect to the po2 tential disclosure of such information by the Secretary.

3 (d) MINIMUM BID REQUIREMENTS.—(1) No bid shall

4 be considered which fails to meet the minimum require5 ments as determined by the Secretary. Such minimum re6 quirements shall include, but need not be limited to, the

7 amount of franchise fee, the duration of the contract, and

8 facilities or services required to be provided by the conces9 sioner.

10 (2) The Secretary may reject any bid, notwithstand11 ing the amount of franchise fee offered, if the Secretary

12 determines that the bidder is not qualified, is likely to pro13 vide unsatisfactory service, or that the bid is not respon14 sive to the objectives of protecting and preserving park

15 resources and of providing necessary and appropriate fa16 cilities or services to the public at reasonable rates.

17 (3) If all bids submitted to the Secretary either fail

18 to meet the minimum bid requirements or are rejected by

19 the Secretary, the Secretary shall establish new minimum

20 bid requirements and reinitiate the competitive bid process

21 pursuant to this section.

22 (e) CONGRESSIONAL NOTIFICATION.—(1) The Sec23 retary shall submit any proposed concessions contract with

24 anticipated annual gross receipts in excess of $1,000,000

25 or a duration of greater than five years to the Committee
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1 on Energy and Natural Resources of the United States

2 Senate and the Committee on Natural Resources of the

3 United States House of Representatives.

4 (2) The Secretary shall not ratify any such proposed

5 contract until at least 60 days subsequent to the notifica6 tion of both Committees.

7 (f) NO PREFERENTIAL RIGHT OF RENEWAL.—(1)

8 Except as provided in paragraph (2), the Secretary shall

9 not grant a preferential right to a concessioner to renew

10 a concessions contract executed pursuant to this Act.

11 (2)(A) Notwithstanding the provisions of paragraph

12 (1), the Secretary may grant a preferential right of re13 newal to a concessioner—

14 (i) for a concessions contract which—

15 (I) authorizes a concessioner to provide

16 outfitting or guide services (including, but not

17 limited to ‘‘river running’’ or other similar serv18 ices) within a park; and

19 (II) does not grant the concessioner any

20 interest in any structure, fixture, or improve21 ment pursuant to section 11 of this Act; and

22 (ii) where the Secretary determines that the

23 concessioner has operated satisfactorily on all eval24 uations conducted during the term of the previous

25 contract; and
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1 (iii) where the Secretary determines that the

2 concessioner’s bid for the new contract satisfies the

3 minimum bid requirements established by the Sec4 retary.

5 (B) For the purpose of paragraph (2), the term

6 ‘‘preferential right of renewal’’ means that the Secretary

7 may allow a concessioner satisfying the requirements of

8 subparagraph (A) the opportunity to match any higher bid

9 submitted to the Secretary.

10 (g) NO PREFERENTIAL RIGHT TO ADDITIONAL

11 SERVICES.—The Secretary shall not grant a preferential

12 right to a concessioner to provide new or additional serv13 ices at a park.

14 SEC. 7. FRANCHISE FEES.

15 (a) IN GENERAL.—Franchise fees, however stated,

16 shall be determined competitively from among those bids

17 determined by the Secretary—

18 (1) to have satisfied the minimum bid require19 ments established pursuant to section 6(d); and

20 (2) to be responsive to the objectives of protect21 ing and preserving park resources and of providing

22 necessary and appropriate facilities or services to the

23 public at reasonable rates.

24 (b) MINIMUM FEE.—Such fee shall not be less than

25 the minimum fee established by the Secretary for each
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1 contract. The minimum fee shall provide the concessioner

2 with a reasonable opportunity to realize a profit on the

3 operation as a whole, commensurate with the capital in4 vested and the obligations assumed.

5 (c) OBJECTIVES OF FEE.—Consideration of revenue

6 to the United States shall be subordinate to the objectives

7 of protecting and preserving park resources and of provid8 ing necessary and appropriate facilities or services to the

9 public at reasonable rates.

10 SEC. 8. USE OF FRANCHISE FEES.

11 All receipts collected pursuant to this Act shall be

12 covered into a special account established in the Treasury

13 of the United States. Amounts covered into such account

14 in a fiscal year shall be available for expenditure, subject

15 to appropriation, solely as follows:

16 (1) 50 percent shall be allocated among the

17 units of the National Park System in the same pro18 portion as franchise fees collected from a specific

19 unit bears to the total amount covered into the ac20 count for each fiscal year, to be used for resource

21 management and protection, maintenance activities,

22 interpretation, and research; and

23 (2) 50 percent shall be allocated among the

24 units of the National Park System on the basis of

25 need, in a manner to be determined by the Sec-
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1 retary, to be used for resource management and pro2 tection, maintenance activities, interpretation, and

3 research.

4 SEC. 9. DURATION OF CONTRACT.

5 (a) MAXIMUM TERM.—A concessions contract en6 tered into pursuant to this Act shall be awarded for a term

7 not to exceed ten years.

8 (b) TEMPORARY CONTRACT.—A temporary conces9 sions contract awarded on a noncompetitive basis pursu10 ant to section 6(b) of this Act shall be for a term not

11 to exceed two years.

12 SEC. 10. TRANSFER OF CONTRACT.

13 (a) IN GENERAL.—(1) No concessions contract may

14 be transferred, assigned, sold, or otherwise conveyed by

15 a concessioner without prior written notification to, and

16 approval of the Secretary. The Secretary shall not approve

17 the transfer of a concessions contract to any individual,

18 corporation or other entity if the Secretary determines

19 that such individual, corporation or entity is, or will be,

20 unable to adequately provide the appropriate facilities or

21 services required by the contract.

22 (2) The Secretary shall reject any proposal to trans23 fer, assign, sell, or otherwise convey a concessions contract

24 if the Secretary determines that such transfer, assign25 ment, sale or conveyance is not consistent with the objec-
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1 tives of protecting and preserving park resources, and of

2 providing necessary and appropriate facilities or services

3 to the public at reasonable rates.

4 (b) CONGRESSIONAL NOTIFICATION.—Within 30

5 days after receiving a proposal to transfer, assign, sell,

6 or otherwise convey a concessions contract, the Secretary

7 shall notify the Committee on Energy and Natural Re8 sources of the United States Senate and the Committee

9 on Natural Resources of the United States House of Rep10 resentatives of such proposal. Approval of such proposal,

11 if granted by the Secretary, shall not take effect until 60

12 days after the date of notification of both Committees.

13 SEC. 11. PROTECTION OF CONCESSIONER INVESTMENT.

14 (a) EXISTING STRUCTURES.—(1) A concessioner who

15 before the date of the enactment of this Act has acquired

16 or constructed, or has commenced acquisition or construc17 tion of any structure, fixture, or improvement upon land

18 owned by the United States within a park, pursuant to

19 a concessions contract, shall have a possessory interest

20 therein, to the extent provided by such contract.

21 (2) The provisions of this subsection shall not apply

22 to a concessioner whose contract in effect on the date of

23 enactment of this Act does not include recognition of a

24 possessory interest.
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1 (3) With respect to a concessions contract entered

2 into on or after the date of enactment of this Act, the

3 provisions of subsection (b) shall apply to any existing

4 structure, fixture, or improvement as defined in paragraph

5 (a)(1), except that the actual original cost of such struc6 ture, fixture, or improvement shall be deemed to be the

7 value of the possessory interest as of the termination date

8 of the previous concessions contract.

9 (b) NEW STRUCTURES.—(1) On or after the date of

10 enactment of this Act, a concessioner who constructs or

11 acquires a new, additional, or replacement structure, fix12 ture, or improvement upon land owned by the United

13 States within a park, pursuant to a concessions contract,

14 shall have an interest in such structure, fixture, or im15 provement equivalent to the actual original cost of acquir16 ing or constructing such structure, fixture, or improve17 ment, less straight line depreciation over the estimated

18 useful life of the asset according to Generally Accepted

19 Accounting Principles: Provided, That in no event shall

20 the estimated useful life of such asset exceed 31.5 years.

21 (2) In the event that the contract expires or is termi22 nated prior to the recovery of such costs, the concessioner

23 shall be entitled to receive from the United States or the

24 successor concessioner payment equal to the value of the

25 concessioner’s interest in such structure, fixture, or im-
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1 provement. A successor concessioner may not revalue the

2 interest in such structure, fixture, or improvement, the

3 method of depreciation, or the estimated useful life of the

4 asset.

5 (3) Such costs shall be accounted for in the schedule

6 of rates and charges established pursuant to section 13

7 of this Act.

8 (4) Title to any such structure, fixture, or improve9 ment shall be vested in the United States.

10 (c) INSURANCE, MAINTENANCE AND REPAIR.—Noth11 ing in this section shall affect the obligation of each con12 cessioner to insure, maintain, and repair any structure,

13 fixture, or improvement assigned to such concessioner and

14 to insure that such structure, fixture, or improvement

15 fully complies with applicable safety and health laws and

16 regulations.

17 (d) PUBLIC REVIEW.—The construction of any new,

18 additional, or replacement structure, fixture, or improve19 ment involving costs of $1,000,000 or more, provided or

20 financed by a concessioner, upon land owned by the Unit21 ed States within a park, shall be authorized only after

22 public review, including an opportunity for public hear23 ings, to determine whether such construction is appro24 priate and consistent with the purposes of the National

25 Park System, the laws relating generally to the adminis-
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1 tration and management of the system, and the park’s

2 general management plan. The requirements of this sub3 section may be satisfied by the public review and hearings

4 associated with the development of the general manage5 ment plan for the park.

6 SEC. 12. UTILITY COSTS.

7 (a) IN GENERAL.—A concessions contract entered

8 into pursuant to this Act shall provide that the conces9 sioner shall be responsible for all utility costs incurred by

10 the concessioner.

11 (b) CONFORMING AMENDMENT.—Section 1 of the

12 Act of August 8, 1953 (16 U.S.C. 1b) is amended in para13 graph 4 by striking ‘‘concessioners,’’.

14 SEC. 13. RATES AND CHARGES TO PUBLIC.

15 The reasonableness of a concessioner’s rates and

16 charges to the public shall, unless otherwise provided in

17 the bid specifications and contract, be judged primarily

18 by comparison with those rates and charges for facilities

19 and services of comparable character under similar condi20 tions, with due consideration for length of season, seasonal

21 variance, average percentage of occupancy, accessibility,

22 availability and costs of labor and materials, type of pa23 tronage, and other factors deemed significant by the Sec24 retary.
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1 SEC. 14. CONCESSIONER PERFORMANCE EVALUATION.

2 (a) REGULATIONS.—Within 180 days after the date

3 of enactment of this Act, the Secretary shall publish in

4 the Federal Register after an appropriate period for public

5 comment, regulations establishing standards and criteria

6 for evaluating the performance of concessions operating

7 within parks.

8 (b) PERIODIC EVALUATION.—(1) The Secretary shall

9 periodically conduct an evaluation of each concessioner op10 erating under a concessions contract pursuant to this Act,

11 as appropriate, to determine whether such concessioner

12 has performed satisfactorily. If the Secretary’s perform13 ance evaluation results in an unsatisfactory rating of the

14 concessioner’s overall operation, the Secretary shall pre15 pare an analysis of the minimum requirements necessary

16 for the operation to be rated satisfactory, and shall so no17 tify the concessioner in writing.

18 (2) The concessioner shall be responsible for all costs

19 associated with any subsequent evaluations resulting from

20 an unsatisfactory rating.

21 (3) If the Secretary terminates a concessions contract

22 pursuant to this section, the Secretary shall solicit bids

23 for a new contract consistent with the provisions of this

24 Act.

25 (c) CONGRESSIONAL NOTIFICATION.—The Secretary

26 shall notify the Committee on Energy and Natural Re-
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1 sources of the United States Senate and the Committee

2 on Natural Resources of the United States House of Rep3 resentatives of each unsatisfactory rating and of each con4 cessions contract terminated pursuant to this section.

5 SEC. 15. RECORDKEEPING REQUIREMENTS.

6 (a) IN GENERAL.—Each concessioner shall keep such

7 records as the Secretary may prescribe to enable the Sec8 retary to determine that all terms of the concessioner’s

9 contract have been, and are being faithfully performed,

10 and the Secretary or any of the Secretary’s duly author11 ized representatives shall, for the purpose of audit and ex12 amination, have access to such records and to other books,

13 documents and papers of the concessioner pertinent to the

14 contract and all the terms and conditions thereof as the

15 Secretary deems necessary.

16 (b) GENERAL ACCOUNTING OFFICE REVIEW.—The

17 Comptroller General of the United States or any of his

18 or her duly authorized representatives shall, until the expi19 ration of five calendar years after the close of the business

20 year for each concessioner or subconcessioner, have access

21 to and the right to examine any pertinent books, docu22 ments, papers, and records of the concessioner or

23 subconcessioner related to the contracts or contract in24 volved.
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1 SEC. 16. EXEMPTION FROM CERTAIN LEASE REQUIRE2 MENTS.

3 The provisions of section 321 of the Act of June 30,

4 1932 (47 Stat. 412; 40 U.S.C. 303b), relating to the leas5 ing of buildings and properties of the United States, shall

6 not apply to contracts awarded by the Secretary pursuant

7 to this Act.

8 SEC. 17. CONFORMING AMENDMENT.

9 Subsection (h) of section 2 of the Act of August 21,

10 1935, the Historical Sites, Buildings and Antiquities Act

11 (49 Stat. 666; 16 U.S.C. 462(h)), is amended by striking

12 out the proviso therein.

13 SECTION 1. SHORT TITLE.

14 This Act may be cited as the ‘‘National Park Service

15 Concessions Policy Reform Act of 1994’’.

16 SEC. 2. FINDINGS AND POLICY.

17 (a) FINDINGS.—In furtherance of the Act of August 25,

18 1916 (39 Stat. 535), as amended (16 U.S.C. 1, 2–4), which

19 directs the Secretary of the Interior to administer areas of

20 the National Park System in accordance with the fun21 damental purpose of preserving their scenery, wildlife, nat22 ural and historic objects, and providing for their enjoyment

23 in a manner that will leave them unimpaired for the enjoy24 ment of future generations, the Congress finds that the pres25 ervation and conservation of park resources and values re26 quires that such public accommodations, facilities, and
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1 services as the Secretary determines are necessary and ap2 propriate in accordance with this Act—

3 (1) should be provided only under carefully con4 trolled safeguards against unregulated and indis5 criminate use so that visitation will not unduly im6 pair these values; and

7 (2) should be limited to locations and designs

8 consistent to the highest practicable degree with the

9 preservation and conservation of park resources and

10 values.

11 (b) POLICY.—It is the policy of the Congress that—

12 (1) development within a park shall be limited

13 to those facilities and services that the Secretary de14 termines are necessary and appropriate for public use

15 and enjoyment of the park in which such facilities

16 and services are located;

17 (2) development within a park should be consist18 ent to the highest practicable degree with the preserva19 tion and conservation of the park’s resources and val20 ues;

21 (3) such facilities and services should be provided

22 by private persons, corporations, or other entities, ex23 cept when no private interest is qualified and willing

24 to provide such facilities and services;
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1 (4) if the Secretary determines that development

2 should be provided within a park, such development

3 shall be designed, located, and operated in a manner

4 that is consistent with the purposes for which such

5 park was established;

6 (5) such facilities and services should be awarded

7 to the person, corporation, or entity submitting the

8 best proposal through a competitive selection process;

9 and

10 (6) such facilities or services should be provided

11 to the public at reasonable rates.

12 SEC. 3. DEFINITIONS.

13 As used in this Act, the term—

14 (1) ‘‘concessioner’’ means a person, corporation,

15 or other entity to whom a concessions contract has

16 been awarded;

17 (2) ‘‘concessions contract’’ means a contract, in18 cluding permits, to provide facilities or services, or

19 both, at a park;

20 (3) ‘‘facilities’’ means improvements to real

21 property within parks used to provide accommoda22 tions, facilities, or services to park visitors;

23 (4) ‘‘park’’ means a unit of the National Park

24 System;
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1 (5) ‘‘proposal’’ means the complete proposal for

2 a concessions contract offered by a potential or exist3 ing concessioner in response to the minimum require4 ments for the contract established by the Secretary;

5 and

6 (6) ‘‘Secretary’’ means the Secretary of the Inte7 rior.

8 SEC. 4. REPEAL OF CONCESSIONS POLICY ACT OF 1965.

9 The Act of October 9, 1965, Public Law 89–249 (79

10 Stat. 969, 16 U.S.C. 20–20g), entitled ‘‘An Act relating to

11 the establishment of concession policies administered in the

12 areas administered by the National Park Service and for

13 other purposes’’, is hereby repealed. The repeal of such Act

14 shall not affect the validity of any contract entered into

15 under such Act, but the provisions of this Act shall apply

16 to any such contract except to the extent such provisions

17 are inconsistent with the express terms and conditions of

18 the contract.

19 SEC. 5. CONCESSIONS POLICY.

20 Subject to the findings and policy stated in section 2

21 of this Act, and upon a determination by the Secretary that

22 facilities or services are necessary and appropriate for the

23 accommodation of visitors at a park, the Secretary shall,

24 consistent with the provisions of this Act, laws relating gen25 erally to the administration and management of units of
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1 the National Park System, and the park’s general manage2 ment plan, concessions plan, or other applicable plans, au3 thorize private persons, corporations, or other entities to

4 provide and operate such facilities or services as the Sec5 retary deems necessary and appropriate.

6 SEC. 6. COMPETITIVE SELECTION PROCESS.

7 (a) IN GENERAL.—(1) Except as provided in sub8 section (b), and consistent with the provisions of subsection

9 (g), any concessions contract entered into pursuant to this

10 Act shall be awarded to the person submitting the best pro11 posal as determined by the Secretary, through a competitive

12 selection process.

13 (2) Within 180 days after the date of enactment of this

14 Act, the Secretary shall promulgate appropriate regulations

15 establishing such process. The regulations shall include pro16 visions for establishing a method or procedure for the resolu17 tion of disputes between the Secretary and a concessioner

18 in those instances where the Secretary has been unable to

19 meet conditions or requirements or provide such services,

20 if any, as set forth in a prospectus pursuant to sections

21 6(c)(2) (D) and (E).

22 (b) TEMPORARY CONTRACT.—Notwithstanding the

23 provisions of subsection (a), the Secretary may award a

24 temporary concessions contract in order to avoid interrup25 tion of services to the public at a park.
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1 (c) PROSPECTUS.—(1) Prior to soliciting proposals for

2 a concessions contract at a park, the Secretary shall publish

3 a notice of availability for a prospectus soliciting proposals

4 at least once in local or national newspapers or trade publi5 cations, as appropriate, and shall make such prospectus

6 available upon request to all interested parties.

7 (2) The prospectus shall include, but need not be lim8 ited to, the following information:

9 (A) The minimum requirements for such con10 tract, as set forth in subsection (d).

11 (B) The terms and conditions of the existing con12 cessions contract awarded for such park, if any, in13 cluding all fees and other forms of compensation pro14 vided to the United States by the concessioner.

15 (C) Other authorized facilities or services which

16 may be provided in a proposal.

17 (D) Facilities and services to be provided by the

18 Secretary to the concessioner, if any, including but

19 not limited to, public access, utilities, and buildings.

20 (E) Minimum public services to be offered within

21 a park by the Secretary, including but not limited to,

22 interpretive programs, campsites, and visitor centers.

23 (F) Such other information related to the pro24 posed concessions operation which is not privileged or

25 otherwise exempt from disclosure under Federal law
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1 as the Secretary determines is necessary to allow for

2 the submission of competitive proposals.

3 (d) MINIMUM PROPOSAL REQUIREMENTS.—(1) No

4 proposal shall be considered which fails to meet the mini5 mum requirements as determined by the Secretary. Such

6 minimum requirements shall include, but need not be lim7 ited to, the minimum acceptable franchise fee, the duration

8 of the contract, facilities, services, or capital investment re9 quired to be provided by the concessioner, and measures

10 needed to ensure the protection and preservation of park

11 resources.

12 (2) The Secretary may reject any proposal, notwith13 standing the amount of franchise fee offered, if the Secretary

14 determines that the person, corporation, or entity is not

15 qualified, is likely to provide unsatisfactory service, or that

16 the proposal is not responsive to the objectives of protecting

17 and preserving park resources and of providing necessary

18 and appropriate facilities or services to the public at rea19 sonable rates.

20 (3) If all proposals submitted to the Secretary either

21 fail to meet the minimum requirements or are rejected by

22 the Secretary, the Secretary shall establish new minimum

23 contract requirements and re-initiate the competitive selec24 tion process pursuant to this section.
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1 (e) SELECTION OF BEST PROPOSAL.—(1) In selecting

2 the best proposal, the Secretary shall consider the following

3 principal factors:

4 (A) The responsiveness of the proposal to the ob5 jectives of protecting and preserving park resources

6 and of providing necessary and appropriate facilities

7 and services to the public at reasonable rates.

8 (B) The experience and related background of the

9 person, corporation, or entity submitting the pro10 posal, including but not limited to, the past perform11 ance and expertise of such person, corporation, or en12 tity in providing the same or similar facilities or

13 services.

14 (C) The financial capability of the person, cor15 poration, or entity submitting the proposal.

16 (D) The proposed franchise fee: Provided, That

17 consideration of revenue to the United States shall be

18 subordinate to the objectives of protecting and preserv19 ing park resources and of providing necessary and

20 appropriate facilities or services to the public at rea21 sonable rates.

22 (2) The Secretary may also consider such secondary

23 factors as the Secretary deems appropriate.

24 (f) CONGRESSIONAL NOTIFICATION.—(1) The Sec25 retary shall submit any proposed concessions contract with
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1 anticipated annual gross receipts in excess of $5,000,000

2 (indexed to 1993 constant dollars) or a duration of ten or

3 more years to the Committee on Energy and Natural Re4 sources of the United States Senate and the Committee on

5 Natural Resources of the United States House of Represent6 atives.

7 (2) The Secretary shall not ratify any such proposed

8 contract until at least 60 days subsequent to the notification

9 of both Committees.

10 (g) NO PREFERENTIAL RIGHT OF RENEWAL.—(1) Ex11 cept as provided in paragraph (2), the Secretary shall not

12 grant a preferential right to a concessioner to renew a con13 cessions contract executed pursuant to this Act.

14 (2)(A) Notwithstanding the provisions of paragraph

15 (1), the Secretary shall grant a preferential right of renewal

16 to a concessioner—

17 (i) for a concessions contract which—

18 (I) primarily authorizes a concessioner to

19 provide outfitting, guide, river running, or other

20 similar services within a park; and

21 (II) does not grant the concessioner any in22 terest in any structure, fixture, or improvement

23 pursuant to section 11 of this Act; or
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1 (III) the Secretary estimates will have an2 nual gross revenues of no more than $500,000;

3 and

4 (ii) where the Secretary determines that the con5 cessioner has operated satisfactorily during the term

6 of the previous contract; and

7 (iii) where the Secretary determines that the con8 cessioner submits a responsive proposal for the new

9 contract which satisfies the minimum requirements

10 established by the Secretary.

11 (B) For the purposes of paragraph (2), the term ‘‘pref12 erential right of renewal’’ means that the Secretary shall

13 allow a concessioner satisfying the requirements of subpara14 graph (A) the opportunity to match the terms and condi15 tions of any competing proposal which the Secretary deter16 mines to be the best offer.

17 (h) NO PREFERENTIAL RIGHT TO ADDITIONAL SERV18 ICES.—The Secretary shall not grant a preferential right

19 to a concessioner to provide new or additional services at

20 a park.

21 SEC. 7. FRANCHISE FEES.

22 (a) IN GENERAL.—Franchise fees, however, stated,

23 shall not be less than the minimum fee established by the

24 Secretary for each contract. The minimum fee shall be de25 termined in a manner that will provide the concessioner
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1 with a reasonable opportunity to realize a profit on the op2 eration as a whole, commensurate with the capital invested

3 and the obligations assumed.

4 (b) MULTIPLE CONTRACTS WITHIN A PARK.—If mul5 tiple concessions contracts are awarded to authorize conces6 sioners to provide the same or similar outfitting, guide,

7 river running, or other similar services at the same approx8 imate location or resource within a specific park, the Sec9 retary shall establish an identical franchise fee for all such

10 contracts. Such fee shall reflect fair market value, as deter11 mined by the Secretary.

12 SEC. 8. USE OF FRANCHISE FEES.

13 (a) SPECIAL ACCOUNT.—Except as provided in sub14 section (b), all receipts collected pursuant to this Act shall

15 be covered into a special account established in the Treasury

16 of the United States. Amounts covered into such account

17 in a fiscal year shall be available for expenditure, subject

18 to appropriation, solely as follows:

19 (1) 50 percent shall be allocated among the units

20 of the National Park System in the same proportion

21 as franchise fees collected from a specific unit bears

22 to the total amount covered into the account for each

23 fiscal year, to be used for resource management and

24 protection, maintenance activities, interpretation,

25 and research.
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1 (2) 50 percent shall be allocated among the units

2 of the National Park System on the basis of need, in

3 a manner to be determined by the Secretary, to be

4 used for resource management and protection, main5 tenance activities, interpretation, and research.

6 (b) PARK IMPROVEMENT FUND.—(1) In lieu of collect7 ing all or a portion of the franchise fees that would other8 wise be collected pursuant to the concessions contract, the

9 Secretary shall, where the Secretary determines it to be

10 practicable, require a concessioner to establish a Park Im11 provement Fund (hereinafter in this section referred to as

12 the ‘‘fund’’), in which the concessioner shall deposit the

13 franchise fees that would otherwise be required by the con14 tract.

15 (2) The fund shall be maintained by the concessioner

16 in an interest bearing account in a Federally-insured fi17 nancial institution. The concessioner shall maintain the

18 fund separately from any other funds or accounts and shall

19 not co-mingle the monies in the fund with any other monies.

20 The Secretary may establish such other terms, conditions,

21 or requirements as the Secretary determines to be necessary

22 to ensure the financial integrity of such fund.

23 (3) Monies from the fund, including interest, shall be

24 expended by the concessioner solely as directed by the Sec25 retary for activities and projects within the park which are
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1 consistent with the park’s general management plan, con2 cessions plan, and other applicable plans, and which the

3 Secretary determines will enhance public use, safety, and

4 enjoyment of the park, including but not limited to projects

5 which directly or indirectly support concession facilities or

6 services required by the concessions contract. Projects paid

7 for from the fund shall not include routine, operational

8 maintenance of facilities. A concessioner shall not be al9 lowed to make any advances or credits to the fund.

10 (4) A concessioner shall not be granted any interest

11 in improvements made from fund expenditures, including

12 any interest granted pursuant to section 11 of this Act.

13 (5) Nothing in this subsection shall affect the obliga14 tion of a concessioner to insure, maintain, and repair any

15 structure, fixture, or improvement assigned to such conces16 sioner and to insure that such structure, fixture, or im17 provement fully complies with applicable safety and health

18 laws and regulations.

19 (6) The concessioner shall maintain proper records for

20 all expenditures made from the fund. Such records shall in21 clude, but not be limited to invoices, bank statements, can22 celed checks, and such other information as the Secretary

23 determines to be necessary.

24 (7) The concessioner shall annually submit to the Sec25 retary a statement reflecting total activity in the fund for
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1 the preceding financial year. The statement shall reflect

2 monthly deposits, expenditures by project, interest earned,

3 and such other information as the Secretary requires.

4 (8) Upon the termination of a concessions contract, or

5 upon the sale or transfer of such contract, any remaining

6 balance in the fund shall be transferred by the concessioner

7 to the successor concessioner, to be used solely as set forth

8 in this subsection. In the event there is not a successor con9 cessioner, the fund balance shall be deposited into the spe10 cial account established in subsection (a).

11 SEC. 9. DURATION OF CONTRACT.

12 (a) MAXIMUM TERM.—A concessions contract entered

13 into pursuant to this Act shall be awarded for a term not

14 to exceed ten years: Provided, however, That the Secretary

15 may award a contract for a term not to exceed twenty years

16 if the Secretary determines that the contract terms and con17 ditions necessitate a longer term.

18 (b) TEMPORARY CONTRACT.—A temporary concessions

19 contract awarded on a non-competitive basis pursuant to

20 section 6(b) of this Act shall be for a term not to exceed

21 two years.

22 SEC. 10. TRANSFER OF CONTRACT.

23 (a) IN GENERAL.—(1) No concessions contract may be

24 transferred, assigned, sold, or otherwise conveyed by a con-
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1 cessioner without prior written notification to, and ap2 proval of the Secretary.

3 (2) The Secretary shall not approve the transfer of a

4 concessions contract to any individual, corporation or other

5 entity if the Secretary determines that—

6 (A) such individual, corporation or entity is, or

7 is likely to be, unable to completely satisfy all of the

8 requirements, terms, and conditions of the contract; or

9 (B) such transfer, assignment, sale or conveyance

10 is not consistent with the objectives of protecting and

11 preserving park resources, and of providing necessary

12 and appropriate facilities or services to the public at

13 reasonable rates: Provided, That such approval shall

14 not be unreasonably withheld.

15 (b) CONGRESSIONAL NOTIFICATION.—Within thirty

16 days after receiving a proposal to transfer, assign, sell, or

17 otherwise convey a concessions contract, the Secretary shall

18 notify the Committee on Energy and Natural Resources of

19 the United States Senate and the Committee on Natural

20 Resources of the United States House of Representatives of

21 such proposal. Approval of such proposal, if granted by the

22 Secretary, shall not take effect until sixty days after the

23 date of notification of both Committees.
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1 SEC. 11. PROTECTION OF CONCESSIONER INVESTMENT.

2 (a) EXISTING STRUCTURES.—(1) A concessioner who

3 before the date of the enactment of this Act has acquired

4 or constructed, or is required under an existing concessions

5 contract to commence acquisition or construction of any

6 structure, fixture, or improvement upon land owned by the

7 United States within a park, pursuant to a concessions con8 tract, shall have a possessory interest therein, to the extent

9 provided by such contract.

10 (2) The provisions of this subsection shall not apply

11 to a concessioner whose contract in effect on the date of en12 actment of this Act does not include recognition of a

13 possessory interest.

14 (3) With respect to a concessions contract entered into

15 on or after the date of enactment of this Act, the provisions

16 of subsection (b) shall apply to any existing structure, fix17 ture, or improvement as defined in paragraph (a)(1), except

18 that the actual original cost of such structure, fixture, or

19 improvement shall be deemed to be the value of the

20 possessory interest as of the termination date of the previous

21 concessions contract.

22 (b) NEW STRUCTURES.—(1) On or after the date of

23 enactment of this Act, a concessioner who constructs or ac24 quires a new, additional, or replacement structure, fixture,

25 or improvement upon land owned by the United States

26 within a park, pursuant to a concessions contract, shall
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1 have an interest in such structure, fixture, or improvement

2 equivalent to the actual original cost of acquiring or con3 structing such structure, fixture, or improvement, less

4 straight line depreciation over the estimated useful life of

5 the asset according to Generally Accepted Accounting Prin6 ciples: Provided, That in no event shall the estimated useful

7 life of such asset exceed the depreciation period used for such

8 asset for Federal income tax purposes.

9 (2) In the event that the contract expires or is termi10 nated prior to the recovery of such costs, the concessioner

11 shall be entitled to receive from the United States or the

12 successor concessioner payment equal to the value of the con13 cessioner’s interest in such structure, fixture, or improve14 ment. A successor concessioner may not revalue the interest

15 in such structure, fixture, or improvement, the method of

16 depreciation, or the estimated useful life of the asset.

17 (3) Title to any such structure, fixture, or improve18 ment shall be vested in the United States.

19 (c) INSURANCE, MAINTENANCE AND REPAIR.—Nothing

20 in this section shall affect the obligation of a concessioner

21 to insure, maintain, and repair any structure, fixture, or

22 improvement assigned to such concessioner and to insure

23 that such structure, fixture, or improvement fully complies

24 with applicable safety and health laws and regulations.
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1 SEC. 12. RATES AND CHARGES TO PUBLIC.

2 The reasonableness of a concessioner’s rates and

3 charges to the public shall, unless otherwise provided in the

4 bid specifications and contract, be judged primarily by

5 comparison with those rates and charges for facilities and

6 services of comparable character under similar conditions,

7 with due consideration for length of season, seasonal vari8 ance, average percentage of occupancy, accessibility, avail9 ability and costs of labor and materials, type of patronage,

10 and other factors deemed significant by the Secretary.

11 SEC. 13. CONCESSIONER PERFORMANCE EVALUATION.

12 (a) REGULATIONS.—Within one hundred and eighty

13 days after the date of enactment of this Act, the Secretary

14 shall publish, after an appropriate period for public com15 ment, regulations establishing standards and criteria for

16 evaluating the performance of concessions operating within

17 parks.

18 (b) PERIODIC EVALUATION.—(1) The Secretary shall

19 periodically conduct an evaluation of each concessioner op20 erating under a concessions contract pursuant to this Act,

21 as appropriate, to determine whether such concessioner has

22 performed satisfactorily. In evaluating a concessioner’s per23 formance, the Secretary shall seek and consider applicable

24 reports and comments from appropriate Federal, State, and

25 local regulatory agencies. If the Secretary’s performance

26 evaluation results in an unsatisfactory rating of the conces-
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1 sioner’s overall operation, the Secretary shall provide the

2 concessioner with a list of the minimum requirements nec3 essary for the operation to be rated satisfactory, and shall

4 so notify the concessioner in writing.

5 (2) The Secretary may terminate a concessions con6 tract if the concessioner fails to meet the minimum oper7 ational requirements identified by the Secretary within the

8 time limitations established by the Secretary at the time

9 notice of the unsatisfactory rating is provided to the conces10 sioner.

11 (3) If the Secretary terminates a concessions contract

12 pursuant to this section, the Secretary shall solicit propos13 als for a new contract consistent with the provisions of this

14 Act.

15 (c) CONGRESSIONAL NOTIFICATION.—The Secretary

16 shall notify the Committee on Energy and Natural Re17 sources of the United States Senate and the Committee on

18 Natural Resources of the United States House of Represent19 atives of each unsatisfactory rating and of each concessions

20 contract terminated pursuant to this section.

21 SEC. 14. RECORDKEEPING REQUIREMENTS.

22 Each concessioner shall keep such records as the Sec23 retary may prescribe to enable the Secretary to determine

24 that all terms of the concessioner’s contract have been, and

25 are being faithfully performed, and the Secretary or any
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1 of the Secretary’s duly authorized representatives shall, for

2 the purpose of audit and examination, have access to such

3 records and to other books, documents and papers of the

4 concessioner pertinent to the contract and all the terms and

5 conditions thereof as the Secretary deems necessary.

6 SEC. 15. EXEMPTION FROM CERTAIN LEASE REQUIRE7 MENTS.

8 The provisions of section 321 of the Act of June 30,

9 1932 (47 Stat. 412; 40 U.S.C. 303b), relating to the leasing

10 of buildings and properties of the United States, shall not

11 apply to contracts awarded by the Secretary pursuant to

12 this Act.

13 SEC. 16. NO EFFECT ON ANILCA PROVISIONS.

14 Nothing in this Act shall be construed to amend, super15 sede, or otherwise affect any provision of the Alaska Na16 tional Interest Lands Conservation Act (16 U.S.C. 3101 et

17 seq.).