II

103D CONGRESS

1ST SESSION S. 208

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 introduced the following bill; which was read twice and referred

to the Committee on Energy and Natural Resources

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,

3 SECTION 1. SHORT TITLE.

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

5 Concessions Policy Reform Act of 1993’’.

6 SEC. 2. FINDINGS AND POLICY.

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

8 25, 1916 (39 Stat. 535), as amended (16 U.S.C. 1, 2–

9 4), which directs the Secretary of the Interior to admin10 ister areas of the National Park System in accordance
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1 with the fundamental purpose of preserving their scenery,

2 wildlife, natural and historic objects, and providing for

3 their enjoyment in a manner that will leave them

4 unimpaired for the enjoyment of future generations, the

5 Congress finds that the preservation of park values re6 quires that public accommodations, facilities, and services

7 be limited to those necessary and appropriate to carry out

8 the approved management objectives for each park.

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

10 (1) public facilities or services shall be provided

11 within a park only when the private sector or other

12 public agencies cannot adequately provide such fa13 cilities or services in the vicinity of the park;

14 (2) if the Secretary determines that public fa15 cilities or services should be provided within a park,

16 such facilities or services shall be limited to locations

17 and designs consistent with the highest degree of re18 source preservation and protection of the aesthetic

19 values of the park;

20 (3) such facilities and services should be award21 ed through competitive bid procedures; and

22 (4) such facilities or services should be provided

23 to the public at reasonable rates.

24 SEC. 3. DEFINITIONS.

25 As used in this Act, the term—
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1 (1) ‘‘bid’’ means the complete proposal for a

2 concessions contract offered by a potential or exist3 ing concessioner in response to the minimum re4 quirements for the contract established by the Sec5 retary;

6 (2) ‘‘concessioner’’ means a private person, cor7 poration, or other entity to whom a concessions con8 tract has been awarded;

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

10 including permits, to provide facilities or services, or

11 both, at a park;

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

13 property within parks used to provide accommoda14 tions, facilities, or services to park visitors;

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

16 System; and

17 (6) ‘‘Secretary’’ means the Secretary of the In18 terior.

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

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

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

22 to the establishment of concession policies administered in

23 the areas administered by the National Park Service, and

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

25 Act shall not affect the validity of any contract entered
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1 into under such Act, but the provisions of this Act shall

2 apply to any such contract except to the extent such provi3 sions are inconsistent with the express terms and condi4 tions of the contract.

5 SEC. 5. CONCESSIONS POLICY.

6 Subject to the findings and policy stated in section

7 2 of this Act, and upon a determination by the Secretary

8 that facilities or services are necessary and appropriate for

9 the accommodation of visitors at a park, the Secretary

10 shall, consistent with the provisions of this Act, laws relat11 ing generally to the administration and management of

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

13 management plan, authorize private persons, corporations,

14 or other entities to provide and operate such facilities or

15 services as the Secretary deems necessary and appro16 priate.

17 SEC. 6. COMPETITIVE BID PROCEDURES.

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

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

20 any concessions contract entered into pursuant to this Act

21 shall be awarded only through competitive bid procedures.

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

23 the Secretary shall promulgate appropriate regulations es24 tablishing such procedures.
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1 (b) TEMPORARY CONTRACT.—Notwithstanding the

2 provisions of subsection (a), the Secretary may waive com3 petitive bid procedures and award a temporary concessions

4 contract in order to avoid interruption of services to the

5 public at a park.

6 (c) PUBLICATION OF CONTRACT REQUIREMENTS.—

7 Prior to soliciting bids for a concessions contract at a

8 park, the Secretary shall publish in the Federal Register

9 the minimum bid requirements for such contract, as set

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

11 the terms and conditions of the previous concessions con12 tract awarded for such park, and such financial informa13 tion of the existing concessioner pertaining directly to the

14 operation of the affected concessions facilities and services

15 during the preceding contract period as the Secretary de16 termines is necessary to allow for the submission of com17 petitive bids. Any concessions contract entered into pursu18 ant to this Act shall provide that the concessioner shall

19 waive any claim of confidentiality with respect to the po20 tential disclosure of such information by the Secretary.

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

22 be considered which fails to meet the minimum require23 ments as determined by the Secretary. Such minimum re24 quirements shall include, but need not be limited to, the

25 amount of franchise fee, the duration of the contract, and
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1 facilities or services required to be provided by the conces2 sioner.

3 (2) The Secretary may reject any bid, notwithstand4 ing the amount of franchise fee offered, if the Secretary

5 determines that the bidder is not qualified, is likely to pro6 vide unsatisfactory service, or that the bid is not respon7 sive to the objectives of protecting and preserving park

8 resources and of providing necessary and appropriate fa9 cilities or services to the public at reasonable rates.

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

11 to meet the minimum bid requirements or are rejected by

12 the Secretary, the Secretary shall establish new minimum

13 bid requirements and reinitiate the competitive bid process

14 pursuant to this section.

15 (e) CONGRESSIONAL NOTIFICATION.—(1) The Sec16 retary shall submit any proposed concessions contract with

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

18 or a duration of greater than five years to the Committee

19 on Energy and Natural Resources of the United States

20 Senate and the Committee on Natural Resources of the

21 United States House of Representatives.

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

23 contract until at least 60 days subsequent to the notifica24 tion of both Committees.
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1 (f) NO PREFERENTIAL RIGHT OF RENEWAL.—(1)

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

3 not grant a preferential right to a concessioner to renew

4 a concessions contract executed pursuant to this Act.

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

6 (1), the Secretary may grant a preferential right of re7 newal to a concessioner—

8 (i) for a concessions contract which—

9 (I) authorizes a concessioner to provide

10 outfitting or guide services (including, but not

11 limited to ‘‘river running’’ or other similar serv12 ices) within a park; and

13 (II) does not grant the concessioner any

14 interest in any structure, fixture, or improve15 ment pursuant to section 11 of this Act; and

16 (ii) where the Secretary determines that the

17 concessioner has operated satisfactorily on all eval18 uations conducted during the term of the previous

19 contract; and

20 (iii) where the Secretary determines that the

21 concessioner’s bid for the new contract satisfies the

22 minimum bid requirements established by the Sec23 retary.

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

25 ‘‘preferential right of renewal’’ means that the Secretary
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1 may allow a concessioner satisfying the requirements of

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

3 submitted to the Secretary.

4 (g) NO PREFERENTIAL RIGHT TO ADDITIONAL

5 SERVICES.—The Secretary shall not grant a preferential

6 right to a concessioner to provide new or additional serv7 ices at a park.

8 SEC. 7. FRANCHISE FEES.

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

10 shall be determined competitively from among those bids

11 determined by the Secretary—

12 (1) to have satisfied the minimum bid require13 ments established pursuant to section 6(d); and

14 (2) to be responsive to the objectives of protect15 ing and preserving park resources and of providing

16 necessary and appropriate facilities or services to the

17 public at reasonable rates.

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

19 the minimum fee established by the Secretary for each

20 contract. The minimum fee shall provide the concessioner

21 with a reasonable opportunity to realize a profit on the

22 operation as a whole, commensurate with the capital in23 vested and the obligations assumed.

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

25 to the United States shall be subordinate to the objectives
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1 of protecting and preserving park resources and of provid2 ing necessary and appropriate facilities or services to the

3 public at reasonable rates.

4 SEC. 8. USE OF FRANCHISE FEES.

5 All receipts collected pursuant to this Act shall be

6 covered into a special account established in the Treasury

7 of the United States. Amounts covered into such account

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

9 to appropriation, solely as follows:

10 (1) 50 percent shall be allocated among the

11 units of the National Park System in the same pro12 portion as franchise fees collected from a specific

13 unit bears to the total amount covered into the ac14 count for each fiscal year, to be used for resource

15 management and protection, maintenance activities,

16 interpretation, and research; and

17 (2) 50 percent shall be allocated among the

18 units of the National Park System on the basis of

19 need, in a manner to be determined by the Sec20 retary, to be used for resource management and pro21 tection, maintenance activities, interpretation, and

22 research.
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1 SEC. 9. DURATION OF CONTRACT.

2 (a) MAXIMUM TERM.—A concessions contract en3 tered into pursuant to this Act shall be awarded for a term

4 not to exceed ten years.

5 (b) TEMPORARY CONTRACT.—A temporary conces6 sions contract awarded on a noncompetitive basis pursu7 ant to section 6(b) of this Act shall be for a term not

8 to exceed two years.

9 SEC. 10. TRANSFER OF CONTRACT.

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

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

12 a concessioner without prior written notification to, and

13 approval of the Secretary. The Secretary shall not approve

14 the transfer of a concessions contract to any individual,

15 corporation or other entity if the Secretary determines

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

17 unable to adequately provide the appropriate facilities or

18 services required by the contract.

19 (2) The Secretary shall reject any proposal to trans20 fer, assign, sell, or otherwise convey a concessions contract

21 if the Secretary determines that such transfer, assign22 ment, sale or conveyance is not consistent with the objec23 tives of protecting and preserving park resources, and of

24 providing necessary and appropriate facilities or services

25 to the public at reasonable rates.
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1 (b) CONGRESSIONAL NOTIFICATION.—Within 30

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

3 or otherwise convey a concessions contract, the Secretary

4 shall notify the Committee on Energy and Natural Re5 sources of the United States Senate and the Committee

6 on Natural Resources of the United States House of Rep7 resentatives of such proposal. Approval of such proposal,

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

9 days after the date of notification of both Committees.

10 SEC. 11. PROTECTION OF CONCESSIONER INVESTMENT.

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

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

13 or constructed, or has commenced acquisition or construc14 tion of any structure, fixture, or improvement upon land

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

16 a concessions contract, shall have a possessory interest

17 therein, to the extent provided by such contract.

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

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

20 enactment of this Act does not include recognition of a

21 possessory interest.

22 (3) With respect to a concessions contract entered

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

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

25 structure, fixture, or improvement as defined in paragraph
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1 (a)(1), except that the actual original cost of such struc2 ture, fixture, or improvement shall be deemed to be the

3 value of the possessory interest as of the termination date

4 of the previous concessions contract.

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

6 enactment of this Act, a concessioner who constructs or

7 acquires a new, additional, or replacement structure, fix8 ture, or improvement upon land owned by the United

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

10 shall have an interest in such structure, fixture, or im11 provement equivalent to the actual original cost of acquir12 ing or constructing such structure, fixture, or improve13 ment, less straight line depreciation over the estimated

14 useful life of the asset according to Generally Accepted

15 Accounting Principles: Provided, That in no event shall

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

17 (2) In the event that the contract expires or is termi18 nated prior to the recovery of such costs, the concessioner

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

20 successor concessioner payment equal to the value of the

21 concessioner’s interest in such structure, fixture, or im22 provement. A successor concessioner may not revalue the

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

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

25 asset.
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1 (3) Such costs shall be accounted for in the schedule

2 of rates and charges established pursuant to section 13

3 of this Act.

4 (4) Title to any such structure, fixture, or improve5 ment shall be vested in the United States.

6 (c) INSURANCE, MAINTENANCE AND REPAIR.—Noth7 ing in this section shall affect the obligation of each con8 cessioner to insure, maintain, and repair any structure,

9 fixture, or improvement assigned to such concessioner and

10 to insure that such structure, fixture, or improvement

11 fully complies with applicable safety and health laws and

12 regulations.

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

14 additional, or replacement structure, fixture, or improve15 ment involving costs of $1,000,000 or more, provided or

16 financed by a concessioner, upon land owned by the Unit17 ed States within a park, shall be authorized only after

18 public review, including an opportunity for public hear19 ings, to determine whether such construction is appro20 priate and consistent with the purposes of the National

21 Park System, the laws relating generally to the adminis22 tration and management of the system, and the park’s

23 general management plan. The requirements of this sub24 section may be satisfied by the public review and hearings
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1 associated with the development of the general manage2 ment plan for the park.

3 SEC. 12. UTILITY COSTS.

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

5 into pursuant to this Act shall provide that the conces6 sioner shall be responsible for all utility costs incurred by

7 the concessioner.

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

9 Act of August 8, 1953 (16 U.S.C. 1b) is amended in para10 graph 4 by striking ‘‘concessioners,’’.

11 SEC. 13. RATES AND CHARGES TO PUBLIC.

12 The reasonableness of a concessioner’s rates and

13 charges to the public shall, unless otherwise provided in

14 the bid specifications and contract, be judged primarily

15 by comparison with those rates and charges for facilities

16 and services of comparable character under similar condi17 tions, with due consideration for length of season, seasonal

18 variance, average percentage of occupancy, accessibility,

19 availability and costs of labor and materials, type of pa20 tronage, and other factors deemed significant by the Sec21 retary.

22 SEC. 14. CONCESSIONER PERFORMANCE EVALUATION.

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

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

25 the Federal Register after an appropriate period for public
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1 comment, regulations establishing standards and criteria

2 for evaluating the performance of concessions operating

3 within parks.

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

5 periodically conduct an evaluation of each concessioner op6 erating under a concessions contract pursuant to this Act,

7 as appropriate, to determine whether such concessioner

8 has performed satisfactorily. If the Secretary’s perform9 ance evaluation results in an unsatisfactory rating of the

10 concessioner’s overall operation, the Secretary shall pre11 pare an analysis of the minimum requirements necessary

12 for the operation to be rated satisfactory, and shall so no13 tify the concessioner in writing.

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

15 associated with any subsequent evaluations resulting from

16 an unsatisfactory rating.

17 (3) If the Secretary terminates a concessions contract

18 pursuant to this section, the Secretary shall solicit bids

19 for a new contract consistent with the provisions of this

20 Act.

21 (c) CONGRESSIONAL NOTIFICATION.—The Secretary

22 shall notify the Committee on Energy and Natural Re23 sources of the United States Senate and the Committee

24 on Natural Resources of the United States House of Rep-
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1 resentatives of each unsatisfactory rating and of each con2 cessions contract terminated pursuant to this section.

3 SEC. 15. RECORDKEEPING REQUIREMENTS.

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

5 records as the Secretary may prescribe to enable the Sec6 retary to determine that all terms of the concessioner’s

7 contract have been, and are being faithfully performed,

8 and the Secretary or any of the Secretary’s duly author9 ized representatives shall, for the purpose of audit and ex10 amination, have access to such records and to other books,

11 documents and papers of the concessioner pertinent to the

12 contract and all the terms and conditions thereof as the

13 Secretary deems necessary.

14 (b) GENERAL ACCOUNTING OFFICE REVIEW.—The

15 Comptroller General of the United States or any of his

16 or her duly authorized representatives shall, until the expi17 ration of five calendar years after the close of the business

18 year for each concessioner or subconcessioner, have access

19 to and the right to examine any pertinent books, docu20 ments, papers, and records of the concessioner or

21 subconcessioner related to the contracts or contract in22 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.

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