I
103D CONGRESS
1ST SESSION
H. R. 2146
To reform the concessions policies of the National Park Service, and for
other purposes.
IN THE HOUSE OF REPRESENTATIVES
MAY 18, 1993
Mr. STEARNS introduced the following bill; which was referred to the
Committee on Natural Resources
A BILL
To reform the concessions policies of the National Park
Service, and for other purposes.
Be it enacted by the Senate and House of Representa-
tives 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 1993’’.
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 admin-
ister 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 of park values re-
quires that public accommodations, facilities, and services
be limited to those necessary and appropriate to carry out
the approved management objectives for each park.
(b) POLICY.—It is the policy of the Congress that—
(1) public facilities or services shall be provided
within a park only when the private sector or other
public agencies cannot adequately provide such fa-
cilities or services in the vicinity of the park;
(2) if the Secretary determines that public fa-
cilities or services should be provided within a park,
such facilities or services shall be limited to locations
and designs consistent with the highest degree of re-
source preservation and protection of the aesthetic
values of the park;
(3) such facilities and services should be award-
ed through competitive bid procedures; and
(4) such facilities or services should be provided
to the public at reasonable rates.
SEC. 3. DEFINITIONS.
As used in this Act, the term—
(1) ‘‘bid’’ means the complete proposal for a
concessions contract offered by a potential or exist-
ing concessioner in response to the minimum re-
quirements for the contract established by the Sec-
retary;
(2) ‘‘concessioner’’ means a private person, cor-
poration, or other entity to whom a concessions con-
tract has been awarded;
(3) ‘‘concessions contract’’ means a contract,
including permits, to provide facilities or services, or
both, at a park;
(4) ‘‘facilities’’ means improvements to real
property within parks used to provide accommoda-
tions, facilities, or services to park visitors;
(5) ‘‘park’’ means a unit of the National Park
System; and
(6) ‘‘Secretary’’ means the Secretary of the In-
terior.
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 provi-
sions are inconsistent with the express terms and condi-
tions 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 relat-
ing generally to the administration and management of
units of the National Park System, and the park’s general
management plan, authorize private persons, corporations,
or other entities to provide and operate such facilities or
services as the Secretary deems necessary and appro-
priate.
SEC. 6. COMPETITIVE BID PROCEDURES.
(a) IN GENERAL.—Except as provided in subsection
(b), and consistent with the provisions of subsection (f),
any concessions contract entered into pursuant to this Act
shall be awarded only through competitive bid procedures.
Within 180 days after the date of enactment of this Act,
the Secretary shall promulgate appropriate regulations es-
tablishing such procedures.
(b) TEMPORARY CONTRACT.—Notwithstanding the
provisions of subsection (a), the Secretary may waive com-
petitive bid procedures and award a temporary concessions
contract in order to avoid interruption of services to the
public at a park.
(c) PUBLICATION OF CONTRACT REQUIREMENTS.—
Prior to soliciting bids for a concessions contract at a
park, the Secretary shall publish in the Federal Register
the minimum bid requirements for such contract, as set
forth in subsection (d). The Secretary shall also publish
the terms and conditions of the previous concessions con-
tract awarded for such park, and such financial informa-
tion of the existing concessioner pertaining directly to the
operation of the affected concessions facilities and services
during the preceding contract period as the Secretary de-
termines is necessary to allow for the submission of com-
petitive bids. Any concessions contract entered into pursu-
ant to this Act shall provide that the concessioner shall
waive any claim of confidentiality with respect to the po-
tential disclosure of such information by the Secretary.
(d) MINIMUM BID REQUIREMENTS.—(1) No bid shall
be considered which fails to meet the minimum require-
ments as determined by the Secretary. Such minimum re-
quirements shall include, but need not be limited to, the
amount of franchise fee, the duration of the contract, and
facilities or services required to be provided by the conces-
sioner.
(2) The Secretary may reject any bid, notwithstand-
ing the amount of franchise fee offered, if the Secretary
determines that the bidder is not qualified, is likely to pro-
vide unsatisfactory service, or that the bid is not respon-
sive to the objectives of protecting and preserving park
resources and of providing necessary and appropriate fa-
cilities or services to the public at reasonable rates.
(3) If all bids submitted to the Secretary either fail
to meet the minimum bid requirements or are rejected by
the Secretary, the Secretary shall establish new minimum
bid requirements and reinitiate the competitive bid process
pursuant to this section.
(e) CONGRESSIONAL NOTIFICATION.—(1) The Sec-
retary shall submit any proposed concessions contract with
anticipated annual gross receipts in excess of $1,000,000
or a duration of greater than five 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 notifica-
tion of both Committees.
(f) 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 may grant a preferential right of re-
newal to a concessioner—
(i) for a concessions contract which—
(I) authorizes a concessioner to provide
outfitting or guide services (including, but not
limited to ‘‘river running’’ or other similar serv-
ices) within a park; and
(II) does not grant the concessioner any
interest in any structure, fixture, or improve-
ment pursuant to section 11 of this Act; and
(ii) where the Secretary determines that the
concessioner has operated satisfactorily on all eval-
uations conducted during the term of the previous
contract; and
(iii) where the Secretary determines that the
concessioner’s bid for the new contract satisfies the
minimum bid requirements established by the Sec-
retary.
(B) For the purpose of paragraph (2), the term
‘‘preferential right of renewal’’ means that the Secretary
may allow a concessioner satisfying the requirements of
subparagraph (A) the opportunity to match any higher bid
submitted to the Secretary.
(g) NO
PREFERENTIAL
RIGHT
TO
ADDITIONAL
SERVICES.—The Secretary shall not grant a preferential
right to a concessioner to provide new or additional serv-
ices at a park.
SEC. 7. FRANCHISE FEES.
(a) IN GENERAL.—Franchise fees, however stated,
shall be determined competitively from among those bids
determined by the Secretary—
(1) to have satisfied the minimum bid require-
ments established pursuant to section 6(d); and
(2) to be responsive to the objectives of protect-
ing and preserving park resources and of providing
necessary and appropriate facilities or services to the
public at reasonable rates.
(b) MINIMUM FEE.—Such fee shall not be less than
the minimum fee established by the Secretary for each
contract. The minimum fee shall provide the concessioner
with a reasonable opportunity to realize a profit on the
operation as a whole, commensurate with the capital in-
vested and the obligations assumed.
(c) OBJECTIVES OF FEE.—Consideration of revenue
to the United States shall be subordinate to the objectives
of protecting and preserving park resources and of provid-
ing necessary and appropriate facilities or services to the
public at reasonable rates.
SEC. 8. USE OF FRANCHISE FEES.
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 pro-
portion as franchise fees collected from a specific
unit bears to the total amount covered into the ac-
count for each fiscal year, to be used for resource
management and protection, maintenance activities,
interpretation, and research; and
(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 Sec-
retary, to be used for resource management and pro-
tection, maintenance activities, interpretation, and
research.
(b) CONGRESSIONAL
NOTIFICATION.—Within 30
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 Re-
sources of the United States Senate and the Committee
on Natural Resources of the United States House of Rep-
resentatives of such proposal. Approval of such proposal,
if granted by the Secretary, shall not take effect until 60
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 has commenced acquisition or construc-
tion 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) 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 actual original cost of such struc-
ture, fixture, or improvement shall be deemed to be the
value of the possessory interest as of the termination date
of the previous concessions contract.
(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, fix-
ture, 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 im-
provement equivalent to the actual original cost of acquir-
ing or constructing such structure, fixture, or improve-
ment, 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 31.5 years.
(2) In the event that the contract expires or is termi-
nated 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 im-
provement. 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) Such costs shall be accounted for in the schedule
of rates and charges established pursuant to section 13
of this Act.
(4) Title to any such structure, fixture, or improve-
ment shall be vested in the United States.
(c) INSURANCE, MAINTENANCE AND REPAIR.—Noth-
ing in this section shall affect the obligation of each con-
cessioner 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.
(d) PUBLIC REVIEW.—The construction of any new,
additional, or replacement structure, fixture, or improve-
ment involving costs of $1,000,000 or more, provided or
financed by a concessioner, upon land owned by the Unit-
ed States within a park, shall be authorized only after
public review, including an opportunity for public hear-
ings, to determine whether such construction is appro-
priate and consistent with the purposes of the National
Park System, the laws relating generally to the adminis-
tration and management of the system, and the park’s
general management plan. The requirements of this sub-
section may be satisfied by the public review and hearings
associated with the development of the general manage-
ment plan for the park.
SEC. 12. UTILITY COSTS.
(a) IN GENERAL.—A concessions contract entered
into pursuant to this Act shall provide that the conces-
sioner shall be responsible for all utility costs incurred by
the concessioner.
(b) CONFORMING AMENDMENT.—Section 1 of the
Act of August 8, 1953 (16 U.S.C. 1b) is amended in para-
graph 4 by striking ‘‘concessioners,’’.
SEC. 13. 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 condi-
tions, with due consideration for length of season, seasonal
variance, average percentage of occupancy, accessibility,
availability and costs of labor and materials, type of pa-
tronage, and other factors deemed significant by the Sec-
retary.
SEC. 14. CONCESSIONER PERFORMANCE EVALUATION.
(a) REGULATIONS.—Within 180 days after the date
of enactment of this Act, the Secretary shall publish in
the Federal Register 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 op-
erating under a concessions contract pursuant to this Act,
as appropriate, to determine whether such concessioner
has performed satisfactorily. If the Secretary’s perform-
ance evaluation results in an unsatisfactory rating of the
concessioner’s overall operation, the Secretary shall pre-
pare an analysis of the minimum requirements necessary
for the operation to be rated satisfactory, and shall so no-
tify the concessioner in writing.
(2) The concessioner shall be responsible for all costs
associated with any subsequent evaluations resulting from
an unsatisfactory rating.
(3) If the Secretary terminates a concessions contract
pursuant to this section, the Secretary shall solicit bids
for a new contract consistent with the provisions of this
Act.
(c) CONGRESSIONAL NOTIFICATION.—The Secretary
shall notify the Committee on Energy and Natural Re-
sources of the United States Senate and the Committee
on Natural Resources of the United States House of Rep-
resentatives of each unsatisfactory rating and of each con-
cessions contract terminated pursuant to this section.
SEC. 15. RECORDKEEPING REQUIREMENTS.
(a) IN GENERAL.—Each concessioner shall keep such
records as the Secretary may prescribe to enable the Sec-
retary 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 author-
ized representatives shall, for the purpose of audit and ex-
amination, 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 expi-
ration of five calendar years after the close of the business
year for each concessioner or subconcessioner, have access
to and the right to examine any pertinent books, docu-
ments, papers, and records of the concessioner or
subconcessioner related to the contracts or contract
involved.