[Congressional Record Volume 140, Number 32 (Monday, March 21, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: March 21, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
      NATIONAL PARK SERVICE CONCESSIONS POLICY REFORM ACT OF 1994

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will now proceed to the consideration of S. 208, which the clerk 
will report.
  The legislative clerk read as follows:

       A bill (S. 208) to reform the concession policies of the 
     National Park Service, and for other purposes.

  The Senate proceeded to consider the bill, which had been reported 
from the Committee on Energy and Natural Resources with an amendment to 
strike out all after the enacting clause and insert in lieu thereof the 
following:

     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.
       (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) 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 structure, 
     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, 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. 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.

       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.

     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.).

  The ACTING PRESIDENT pro tempore. The Senator from Louisiana.

                          ____________________