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[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 208 Engrossed in Senate (ES)]

103d CONGRESS

  2d Session

                                 S. 208

_______________________________________________________________________

                                 AN ACT

 To reform the concessions policies of the National Park Service, and 
                          for other purposes.
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
103d CONGRESS
  2d Session
                                 S. 208

_______________________________________________________________________

                                 AN ACT

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

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``National Park Service Concessions 
Policy Reform Act of 1994''.

SEC. 2. FINDINGS AND POLICY.

    (a) Findings.--In furtherance of the Act of August 25, 1916 (39 
Stat. 535), as amended (16 U.S.C. 1, 2-4), which directs the Secretary 
of the Interior to administer areas of the National Park System in 
accordance with the fundamental purpose of preserving their scenery, 
wildlife, natural and historic objects, and providing for their 
enjoyment in a manner that will leave them unimpaired for the enjoyment 
of future generations, the Congress finds that the preservation and 
conservation of park resources and values requires that such public 
accommodations, facilities, and services as the Secretary determines 
are necessary and appropriate in accordance with this Act--
            (1) should be provided only under carefully controlled 
        safeguards against unregulated and indiscriminate use so that 
        visitation will not unduly impair these values; and
            (2) should be limited to locations and designs consistent 
        to the highest practicable degree with the preservation and 
        conservation of park resources and values.
    (b) Policy.--It is the policy of the Congress that--
            (1) development within a park shall be limited to those 
        facilities and services that the Secretary determines are 
        necessary and appropriate for public use and enjoyment of the 
        park in which such facilities and services are located;
            (2) development within a park should be consistent to the 
        highest practicable degree with the preservation and 
        conservation of the park's resources and values;
            (3) such facilities and services should be provided by 
        private persons, corporations, or other entities, except when 
        no private interest is qualified and willing to provide such 
        facilities and services;
            (4) if the Secretary determines that development should be 
        provided within a park, such development shall be designed, 
        located, and operated in a manner that is consistent with the 
        purposes for which such park was established;
            (5) such facilities and services should be awarded to the 
        person, corporation, or entity submitting the best proposal 
        through a competitive selection process; and
            (6) such facilities or services should be provided to the 
        public at reasonable rates.

SEC. 3. DEFINITIONS.

    As used in this Act, the term--
            (1) ``concessioner'' means a person, corporation, or other 
        entity to whom a concessions contract has been awarded;
            (2) ``concessions contract'' means a contract, including 
        permits, to provide facilities or services, or both, at a park;
            (3) ``facilities'' means improvements to real property 
        within parks used to provide accommodations, facilities, or 
        services to park visitors;
            (4) ``park'' means a unit of the National Park System;
            (5) ``proposal'' means the complete proposal for a 
        concessions contract offered by a potential or existing 
        concessioner in response to the minimum requirements for the 
        contract established by the Secretary; and
            (6) ``Secretary'' means the Secretary of the Interior.

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

    The Act of October 9, 1965, Public Law 89-249 (79 Stat. 969, 16 
U.S.C. 20-20g), entitled ``An Act relating to the establishment of 
concession policies administered in the areas administered by the 
National Park Service and for other purposes'', is hereby repealed. The 
repeal of such Act shall not affect the validity of any contract 
entered into under such Act, but the provisions of this Act shall apply 
to any such contract except to the extent such provisions are 
inconsistent with the express terms and conditions of the contract.

SEC. 5. CONCESSIONS POLICY.

    Subject to the findings and policy stated in section 2 of this Act, 
and upon a determination by the Secretary that facilities or services 
are necessary and appropriate for the accommodation of visitors at a 
park, the Secretary shall, consistent with the provisions of this Act, 
laws relating generally to the administration and management of units 
of the National Park System, and the park's general management plan, 
concessions plan, or other applicable plans, authorize private persons, 
corporations, or other entities to provide and operate such facilities 
or services as the Secretary deems necessary and appropriate.

SEC. 6. COMPETITIVE SELECTION PROCESS.

    (a) In General.--(1) Except as provided in subsection (b), and 
consistent with the provisions of subsection (g), any concessions 
contract entered into pursuant to this Act shall be awarded to the 
person submitting the best proposal as determined by the Secretary, 
through a competitive selection process.
    (2) Within 180 days after the date of enactment of this Act, the 
Secretary shall promulgate appropriate regulations establishing such 
process. The regulations shall include provisions for establishing a 
method or procedure for the resolution of disputes between the 
Secretary and a concessioner in those instances where the Secretary has 
been unable to meet conditions or requirements or provide such 
services, if any, as set forth in a prospectus pursuant to sections 
6(c)(2) (D) and (E).
    (b) Temporary Contract.--Notwithstanding the provisions of 
subsection (a), the Secretary may award a temporary concessions 
contract in order to avoid interruption of services to the public at a 
park except that the Secretary shall take all reasonable and 
appropriate steps to consider competing alternatives for such contract.
    (c) Prospectus.--(1) Prior to soliciting proposals for a 
concessions contract at a park, the Secretary shall publish a notice of 
availability for a prospectus soliciting proposals at least once in 
local or national newspapers or trade publications, as appropriate, and 
shall make such prospectus available upon request to all interested 
parties.
    (2) The prospectus shall include, but need not be limited to, the 
following information:
            (A) The minimum requirements for such contract, as set 
        forth in subsection (d).
            (B) The terms and conditions of the existing concessions 
        contract awarded for such park, if any, including all fees and 
        other forms of compensation provided to the United States by 
        the concessioner.
            (C) Other authorized facilities or services which may be 
        provided in a proposal.
            (D) Facilities and services to be provided by the Secretary 
        to the concessioner, if any, including but not limited to, 
        public access, utilities, and buildings.
            (E) Minimum public services to be offered within a park by 
        the Secretary, including but not limited to, interpretive 
        programs, campsites, and visitor centers.
            (F) Such other information related to the proposed 
        concessions operation which is not privileged or otherwise 
        exempt from disclosure under Federal law as the Secretary 
        determines is necessary to allow for the submission of 
        competitive proposals.
    (d) Minimum Proposal Requirements.--(1) No proposal shall be 
considered which fails to meet the minimum requirements as determined 
by the Secretary. Such minimum requirements shall include, but need not 
be limited to, the minimum acceptable franchise fee, the duration of 
the contract, facilities, services, or capital investment required to 
be provided by the concessioner, and measures needed to ensure the 
protection and preservation of park resources.
    (2) The Secretary may reject any proposal, notwithstanding the 
amount of franchise fee offered, if the Secretary determines that the 
person, corporation, or entity is not qualified, is likely to provide 
unsatisfactory service, or that the proposal is not responsive to the 
objectives of protecting and preserving park resources and of providing 
necessary and appropriate facilities or services to the public at 
reasonable rates.
    (3) If all proposals submitted to the Secretary either fail to meet 
the minimum requirements or are rejected by the Secretary, the 
Secretary shall establish new minimum contract requirements and re-
initiate the competitive selection process pursuant to this section.
    (e) Selection of Best Proposal.--(1) In selecting the best 
proposal, the Secretary shall consider the following principal factors:
            (A) The responsiveness of the proposal to the objectives of 
        protecting and preserving park resources and of providing 
        necessary and appropriate facilities and services to the public 
        at reasonable rates.
            (B) The experience and related background of the person, 
        corporation, or entity submitting the proposal, including but 
        not limited to, the past performance and expertise of such 
        person, corporation, or entity in providing the same or similar 
        facilities or services.
            (C) The financial capability of the person, corporation, or 
        entity submitting the proposal.
            (D) The proposed franchise fee: Provided, That 
        consideration of revenue to the United States shall be 
        subordinate to the objectives of protecting and preserving park 
        resources and of providing necessary and appropriate facilities 
        or services to the public at reasonable rates.
    (2) The Secretary may also consider such secondary factors as the 
Secretary deems appropriate.
    (f) Congressional Notification.--(1) The Secretary shall submit any 
proposed concessions contract with anticipated annual gross receipts in 
excess of $5,000,000 (indexed to 1993 constant dollars) or a duration 
of ten or more years to the Committee on Energy and Natural Resources 
of the United States Senate and the Committee on Natural Resources of 
the United States House of Representatives.
    (2) The Secretary shall not ratify any such proposed contract until 
at least 60 days subsequent to the notification of both Committees.
    (g) No Preferential Right of Renewal.--(1) Except as provided in 
paragraph (2), the Secretary shall not grant a preferential right to a 
concessioner to renew a concessions contract executed pursuant to this 
Act.
    (2)(A) Notwithstanding the provisions of paragraph (1), the 
Secretary shall grant a preferential right of renewal to a 
concessioner--
            (i) for a concessions contract which--
                    (I) primarily authorizes a concessioner to provide 
                outfitting, guide, river running, or other similar 
                services within a park; and
                    (II) does not grant the concessioner any interest 
                in any structure, fixture, or improvement pursuant to 
                section 11 of this Act; or
                    (III) the Secretary estimates will have annual 
                gross revenues of no more than $500,000; and
            (ii) where the Secretary determines that the concessioner 
        has operated satisfactorily during the term of the previous 
        contract; and
            (iii) where the Secretary determines that the concessioner 
        submits a responsive proposal for the new contract which 
        satisfies the minimum requirements established by the 
        Secretary.
    (B) For the purposes of paragraph (2), the term ``preferential 
right of renewal'' means that the Secretary shall allow a concessioner 
satisfying the requirements of subparagraph (A) the opportunity to 
match the terms and conditions of any competing proposal which the 
Secretary determines to be the best offer.
    (h) No Preferential Right To Additional Services.--The Secretary 
shall not grant a preferential right to a concessioner to provide new 
or additional services at a park.

SEC. 7. FRANCHISE FEES.

    (a) In General.--Franchise fees, however, stated, shall not be less 
than the minimum fee established by the Secretary for each contract. 
The minimum fee shall be determined in a manner that will provide the 
concessioner with a reasonable opportunity to realize a profit on the 
operation as a whole, commensurate with the capital invested and the 
obligations assumed.
    (b) Multiple Contracts Within a Park.--If multiple concessions 
contracts are awarded to authorize concessioners to provide the same or 
similar outfitting, guide, river running, or other similar services at 
the same approximate location or resource within a specific park, the 
Secretary shall establish an identical franchise fee for all such 
contracts. Such fee shall reflect fair market value, as determined by 
the Secretary.

SEC. 8. USE OF FRANCHISE FEES.

    (a) Special Account.--Except as provided in subsection (b), all 
receipts collected pursuant to this Act shall be covered into a special 
account established in the Treasury of the United States. Amounts 
covered into such account in a fiscal year shall be available for 
expenditure, subject to appropriation, solely as follows:
            (1) 50 percent shall be allocated among the units of the 
        National Park System in the same proportion as franchise fees 
        collected from a specific unit bears to the total amount 
        covered into the account for each fiscal year, to be used for 
        resource management and protection, maintenance activities, 
        interpretation, and research.
            (2) 50 percent shall be allocated among the units of the 
        National Park System on the basis of need, in a manner to be 
        determined by the Secretary, to be used for resource management 
        and protection, maintenance activities, interpretation, and 
        research.
    (b) Park Improvement Fund.--(1) In lieu of collecting all or a 
portion of the franchise fees that would otherwise be collected 
pursuant to the concessions contract, the Secretary shall, where the 
Secretary determines it to be practicable, require a concessioner to 
establish a Park Improvement Fund (hereinafter in this section referred 
to as the ``fund''), in which the concessioner shall deposit the 
franchise fees that would otherwise be required by the contract.
    (2) The fund shall be maintained by the concessioner in an interest 
bearing account in a Federally-insured financial institution. The 
concessioner shall maintain the fund separately from any other funds or 
accounts and shall not co-mingle the monies in the fund with any other 
monies. The Secretary may establish such other terms, conditions, or 
requirements as the Secretary determines to be necessary to ensure the 
financial integrity of such fund.
    (3) Monies from the fund, including interest, shall be expended by 
the concessioner solely as directed by the Secretary for activities and 
projects within the park which are consistent with the park's general 
management plan, concessions plan, and other applicable plans, and 
which the Secretary determines will enhance public use, safety, and 
enjoyment of the park, including but not limited to projects which 
directly or indirectly support concession facilities or services 
required by the concessions contract. Projects paid for from the fund 
shall not include routine, operational maintenance of facilities. A 
concessioner shall not be allowed to make any advances or credits to 
the fund.
    (4) A concessioner shall not be granted any interest in 
improvements made from fund expenditures, including any interest 
granted pursuant to section 11 of this Act.
    (5) Nothing in this subsection shall affect the obligation of a 
concessioner to insure, maintain, and repair any structure, fixture, or 
improvement assigned to such concessioner and to insure that such 
structure, fixture, or improvement fully complies with applicable 
safety and health laws and regulations.
    (6) The concessioner shall maintain proper records for all 
expenditures made from the fund. Such records shall include, but not be 
limited to invoices, bank statements, canceled checks, and such other 
information as the Secretary determines to be necessary.
    (7) The concessioner shall annually submit to the Secretary a 
statement reflecting total activity in the fund for the preceding 
financial year. The statement shall reflect monthly deposits, 
expenditures by project, interest earned, and such other information as 
the Secretary requires.
    (8) Upon the termination of a concessions contract, or upon the 
sale or transfer of such contract, any remaining balance in the fund 
shall be transferred by the concessioner to the successor concessioner, 
to be used solely as set forth in this subsection. In the event there 
is not a successor concessioner, the fund balance shall be deposited 
into the special account established in subsection (a).

SEC. 9. DURATION OF CONTRACT.

    (a) Maximum Term.--A concessions contract entered into pursuant to 
this Act shall be awarded for a term not to exceed ten years: Provided, 
however, That the Secretary may award a contract for a term not to 
exceed twenty years if the Secretary determines that the contract terms 
and conditions necessitate a longer term.
    (b) Temporary Contract.--A temporary concessions contract awarded 
on a non-competitive basis pursuant to section 6(b) of this Act shall 
be for a term not to exceed two years.

SEC. 10. TRANSFER OF CONTRACT.

    (a) In General.--(1) No concessions contract may be transferred, 
assigned, sold, or otherwise conveyed by a concessioner without prior 
written notification to, and approval of the Secretary.
    (2) The Secretary shall not approve the transfer of a concessions 
contract to any individual, corporation or other entity if the 
Secretary determines that--
            (A) such individual, corporation or entity is, or is likely 
        to be, unable to completely satisfy all of the requirements, 
        terms, and conditions of the contract; or
            (B) such transfer, assignment, sale or conveyance is not 
        consistent with the objectives of protecting and preserving 
        park resources, and of providing necessary and appropriate 
        facilities or services to the public at reasonable rates: 
        Provided, That such approval shall not be unreasonably 
        withheld.
    (b) Congressional Notification.--Within thirty days after receiving 
a proposal to transfer, assign, sell, or otherwise convey a concessions 
contract, the Secretary shall notify the Committee on Energy and 
Natural Resources of the United States Senate and the Committee on 
Natural Resources of the United States House of Representatives of such 
proposal. Approval of such proposal, if granted by the Secretary, shall 
not take effect until sixty days after the date of notification of both 
Committees.

SEC. 11. PROTECTION OF CONCESSIONER INVESTMENT.

    (a) Existing Structures.--(1) A concessioner who before the date of 
the enactment of this Act has acquired or constructed, or is required 
under an existing concessions contract to commence acquisition or 
construction of any structure, fixture, or improvement upon land owned 
by the United States within a park, pursuant to a concessions contract, 
shall have a possessory interest therein, to the extent provided by 
such contract.
    (2) The provisions of this subsection shall not apply to a 
concessioner whose contract in effect on the date of enactment of this 
Act does not include recognition of a possessory interest.
    ``(3)(A) Except as provided in subparagraph (B), with respect to a 
concessions contract entered into on or after the date of enactment of 
this Act, the provisions of subsection (b) shall apply to any existing 
structure, fixture, or improvement as defined in paragraph (a)(1), 
except that the value of the possessory interest as of the termination 
date of the first contract expiring after the date of enactment of this 
Act shall be used as the basis for depreciation, in lieu of the actual 
original cost of such structure, fixture, or improvement.
    ``(B) If the Secretary determines during the competitive selection 
process that all proposals submitted either fail to meet the minimum 
requirements or are rejected (as provided in section 6), the Secretary 
may, solely with respect to a structure, fixture, or improvement 
covered under this paragraph, suspend the depreciation provisions of 
subsection (b)(1) for the duration of the contract: Provided, That the 
Secretary may suspend such depreciation provisions only if the 
Secretary determines that the establishment of other new minimum 
contract requirements is not likely to result in the submission of 
satisfactory proposals, and that the suspension of the depreciation 
provisions is likely to result in the submission of satisfactory 
proposals.
    (b) New Structures.--(1) On or after the date of enactment of this 
Act, a concessioner who constructs or acquires a new, additional, or 
replacement structure, fixture, or improvement upon land owned by the 
United States within a park, pursuant to a concessions contract, shall 
have an interest in such structure, fixture, or improvement equivalent 
to the actual original cost of acquiring or constructing such 
structure, fixture, or improvement, less straight line depreciation 
over the estimated useful life of the asset according to Generally 
Accepted Accounting Principles: Provided, That in no event shall the 
estimated useful life of such asset exceed the depreciation period used 
for such asset for Federal income tax purposes.
    (2) In the event that the contract expires or is terminated prior 
to the recovery of such costs, the concessioner shall be entitled to 
receive from the United States or the successor concessioner payment 
equal to the value of the concessioner's interest in such structure, 
fixture, or improvement. A successor concessioner may not revalue the 
interest in such structure, fixture, or improvement, the method of 
depreciation, or the estimated useful life of the asset.
    (3) Title to any such structure, fixture, or improvement shall be 
vested in the United States.
    (c) Insurance, Maintenance and Repair.--Nothing in this section 
shall affect the obligation of a concessioner to insure, maintain, and 
repair any structure, fixture, or improvement assigned to such 
concessioner and to insure that such structure, fixture, or improvement 
fully complies with applicable safety and health laws and regulations.

SEC. 12. RATES AND CHARGES TO PUBLIC.

    The reasonableness of a concessioner's rates and charges to the 
public shall, unless otherwise provided in the bid specifications and 
contract, be judged primarily by comparison with those rates and 
charges for facilities and services of comparable character under 
similar conditions, with due consideration for length of season, 
seasonal variance, average percentage of occupancy, accessibility, 
availability and costs of labor and materials, type of patronage, and 
other factors deemed significant by the Secretary.

SEC. 13. CONCESSIONER PERFORMANCE EVALUATION.

    (a) Regulations.--Within one hundred and eighty days after the date 
of enactment of this Act, the Secretary shall publish, after an 
appropriate period for public comment, regulations establishing 
standards and criteria for evaluating the performance of concessions 
operating within parks.
    (b) Periodic Evaluation.--(1) The Secretary shall periodically 
conduct an evaluation of each concessioner operating under a 
concessions contract pursuant to this Act, as appropriate, to determine 
whether such concessioner has performed satisfactorily. In evaluating a 
concessioner's performance, the Secretary shall seek and consider 
applicable reports and comments from appropriate Federal, State, and 
local regulatory agencies, and shall seek and consider the applicable 
views of park visitors and concession customers. If the Secretary's 
performance evaluation results in an unsatisfactory rating of the 
concessioner's overall operation, the Secretary shall provide the 
concessioner with a list of the minimum requirements necessary for the 
operation to be rated satisfactory, and shall so notify the 
concessioner in writing.
    (2) The Secretary may terminate a concessions contract if the 
concessioner fails to meet the minimum operational requirements 
identified by the Secretary within the time limitations established by 
the Secretary at the time notice of the unsatisfactory rating is 
provided to the concessioner.
    (3) If the Secretary terminates a concessions contract pursuant to 
this section, the Secretary shall solicit proposals for a new contract 
consistent with the provisions of this Act.
    (c) Congressional Notification.--The Secretary shall notify the 
Committee on Energy and Natural Resources of the United States Senate 
and the Committee on Natural Resources of the United States House of 
Representatives of each unsatisfactory rating and of each concessions 
contract terminated pursuant to this section.

SEC. 14. RECORDKEEPING REQUIREMENTS.

    (a) In General.--Each concessioner shall keep such records as the 
Secretary may prescribe to enable the Secretary to determine that all 
terms of the concessioner's contract have been, and are being 
faithfully performed, and the Secretary or any of the Secretary's duly 
authorized representatives shall, for the purpose of audit and 
examination, have access to such records and to other books, documents 
and papers of the concessioner pertinent to the contract and all the 
terms and conditions thereof as the Secretary deems necessary.
    (b) General Accounting Office Review.--The Comptroller General of 
the United States or any of his or her duly authorized representatives 
shall, until the expiration of five calendar years after the close of 
the business year for each concessioner, have access to and the right 
to examine any pertinent books, documents, papers, and records of the 
concessioner related to the contracts or contracts involved.

SEC. 15. EXEMPTION FROM CERTAIN LEASE REQUIREMENTS.

    The provisions of section 321 of the Act of June 30, 1932 (47 Stat. 
412; 40 U.S.C. 303b), relating to the leasing of buildings and 
properties of the United States, shall not apply to contracts awarded 
by the Secretary pursuant to this Act.

SEC. 16. NO EFFECT ON ANILCA PROVISIONS.

    Nothing in this Act shall be construed to amend, supersede, or 
otherwise affect any provision of the Alaska National Interest Lands 
Conservation Act (16 U.S.C. 3101 et seq.).

SEC. 17. IMPLEMENTATION.

    Beginning on June 1, 1997 and bi-annually thereafter the Inspector 
General of the Department of the Interior shall submit a report to the 
Committee on Energy and Natural Resources of the United States Senate 
and the appropriate Committees of the House of Representatives on the 
implementation of this Act and the effect of such implementation on 
facilities operated pursuant to concession contracts and on visitor 
services. Each report shall--
            (a) identify any concession contracts which have been 
        renewed, renegotiated, terminated, or transferred during the 
        year prior to the submission of the report and identify any 
        significant changes in the terms of the new contract;
            (b) state the amount of franchise fees the rates which 
        would be charged for services, and the level of other services 
        required to be provided by the concessioner in comparison to 
        that required in the previous contract;
            (c) assess the degree to which concession facilities are 
        being maintained using the condition of such facilities on the 
        date of enactment of this Act as a baseline;
            (d) determine whether competition has been increased or 
        decreased with respect to the awarding of each contract;
            (e) set forth the amount of revenues received and financial 
        obligations incurred or reduced by the Federal Government as a 
        result of the comparison of the Act for the reporting period 
        and in comparison with previous reporting periods and the 
        baseline year of 1993, including the costs, if any, associated 
        with the acquisition of possessory interests.

            Passed the Senate March 22 (legislative day, February 22), 
      1994.

            Attest:

                                                             Secretary.

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