[Congressional Record Volume 140, Number 33 (Tuesday, March 22, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
[Congressional Record: March 22, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
NATIONAL PARK SERVICE CONCESSIONS POLICY REFORM ACT OF 1994
The PRESIDING OFFICER. Under the previous order, the Senate will
proceed to a vote on S. 208, to reform the policies of the National
Park Service, and for other purposes.
Mr. JOHNSTON. Madam President, I wish to again commend Senator
Bumpers' for his years of hard work on this important legislation. As
the subcommittee chairman, he has drafted this legislation, conducted
the hearings, and negotiated the compromise that we are passing today.
In addition, I would like to again compliment the Senator from Utah
[Mr. Bennett] who has worked very closely with Senator Bumpers and the
rest of us on the Energy Committee in bringing this bill together. He
brought a fresh, objective and business-oriented view of the
concessions issue to the table and without his assistance, our road
would have been much rougher.
Madam President, I would also like to acknowledge the contribution of
a number of staff members who have been involved in this legislation--
particularly, David Brooks, Tom Williams, Diane Balamoti, and Jason
Dilg of the Energy Committee staff; Rich Glick and Tracy Crowley of
Senator Bumpers staff; and Chip Yost and Jim Barker of Senator
Bennett's staff. I thank each of them for their help and hard work.
Mr. SIMPSON. Madam President, I rise to join my colleague, the senior
Senator from Wyoming, Malcolm Wallop, in opposition to this bill.
I share my colleagues strong concerns about the provisions that force
concessionaires to forfeit their private property rights.
That, in my view, is an unconstitutional taking of private property.
I do not believe for an instant that the rather convoluted formula for
depreciation and purchase of the private property is just compensation
as that phrase is used in the constitution.
Just means fair and equitable.
There is nothing just in accelerating a depreciation schedule over 10
years for some improvements that range in the millions of dollars.
If the Senate passes this legislation, we will be directing the
Department of Interior to do nothing less than confiscate the private
property of concessionaires who have done nothing wrong. Indeed, the
concessionaires currently doing business in Wyoming National Parks are
doing a fine job and providing a needed--and much appreciated--service
to the public.
I am at a loss to understand why this provision is being supported by
the administration. It is a puzzling thing.
I can very easily understand why the Park Service wants to get its
hands on the revenues from concessionaires. It does not take a rocket
scientist to understand why the Park Service wants to keep that money,
rather than turn it over to the Treasury. I hunch that they would like
to keep it ``off budget'' also. That invites abuse and we should vote
against this bill because of that provision alone.
The National Park Service enjoys a billion dollar yearly budget. They
are constantly saying they ``need more'' funding, and this is an
attractive mechanism for that. But in terms of services, it is the
concessionaires that provide the food, the lodging, and the
recreational opportunities for the vast majority of the public that
visit our national parks.
It is the Park Service personnel who enforce the laws and they employ
many good people who do the ``heavy lifting'' in maintaining the roads
and the attractions.
We can not, however, say that the Park Service collects the entrance
fees, because our experience in Wyoming is that often, those collection
booths are abandoned.
We have heard our able colleague, Senator Burns of Montana, speak
eloquently on that issue last year.
Instead of ensuring that entrance fees are collected, the
administration now seems to prefer spending its energy thinking up
creative ways to request additional revenues from another group of
taxpayers--concessionaires. Concessionaires pay income, State, and
local taxes and they pay a great deal.
This legislation targets those concessionaires--the last remaining
revenue generating activity in our parks--for eventual extinction. When
the concessionaires are forced out, who will provide the needed public
services and amenities?
Certainly not the Park Service--they have not even been able to
collect entrance fees on a regular basis.
We are very fortunate in Wyoming to have some of the finest park
supervisors in the country. Bob Barbee of Yellowstone Park is one of
the most able men I have come to know. He does it all. I admire him
greatly. They are all good people who work cooperatively with the fine
concessionaires that we are fortunate to have in our Wyoming Parks.
I do not believe this policy originated at the local park level. We
need only look about a mile west of this building to find the source of
this ill-advised and unjust policy.
There is only a single provision of this bill that has merit. That is
the provision which grants preferential renewal rights to the ``small''
concessionaires: outfitters.
Outfitters deserve deference in our policy--they are excellent
stewards and provide services to the general public and often assist
Park Service personnel in maintenance and upkeep activities. These
small businesses are entitled to respect for their contributions in the
management policy of the parks.
It is most unfortunate that the respect shown the small outfitters in
this bill did not extend to the administration's policy for all
concessionaires. It is unfortunate, and it is unjust. I oppose this
legislation and I encourage my colleagues to oppose it also.
Mr. WALLOP. Madam President, my opposition to S. 208 is very simple.
Enactment of this legislation will:
First, seriously undermine a very successful system under which the
private sector has financed and provided quality services to the public
at reasonable rates;
Second, place increases pressures on an already overextended National
Park Service budget;
Third, result in totally unnecessary Federal expenditures at the
expense of not only the National Park Service, but all agencies which
must compete for funds from the Interior and Related Agencies
Appropriation account;
Fourth, reduce Federal revenues; and
Fifth, threaten National Park System resources.
Under the present system the Concession Policy Act of 1965, the
private sector--not the Federal Government--provides visitor services.
When Congress passed the Concession Policy Act in 1965, we intended to
discourage the turnover of concession operations.
As a matter of Federal policy, we decided that the private sector
should be encouraged to provide visitor services. They would be
regulated and would be allowed to make a reasonable profit. In
exchange, they, not the Federal Government and the taxpayers, would be
required to raise the capital to construct and maintain facilities to
standards set by the Federal Government. Continuity of good services at
reasonable rates to our park visitors was judged to be more important
than the collection of receipts. That was a time when our national
parks were considered to be public treasures for the benefit of the
public. Concessions were never intended to be cash cows for the
Government, but rather an efficient cost effective means of providing
visitor services. The Government has full authority to adjust the
franchise fee to ensure a fair return to the Federal Government under
the 1965 act, that it has not, speaks to Park Service management, not
statutory weakness.
The present system works because concessioners are provided a
preferential right of renewal if they perform adequately, which ensures
continuity of service, and a possessory right in all improvements,
which they can use as collateral for loans. Title to all facilities
resides in the United States. The concessioner is entitled to the sound
value of the possessory interest if the contract is not renewed.
S. 208 eliminates all future possessory interests unless the
Secretary determines that the elimination of possessory interest will
prevent the submission of satisfactory proposals, and requires that, as
a condition of contract renewal, present concessioners agree to have
their current possessory interest reduced in value over a period of
years until it is eliminated. I submit that the analysis is simple.
An existing concessioner with a $5 million possessory interest facing
renewal can either have his interest reduced to nothing or he can take
the money. A competitor who might otherwise have bid on the contract
would be faced with paying the $5 million without its value as
collateral, since it will be reduced for him as well. What is likely to
happen is that no one will want the contract until the Federal
Government pays off the existing concessioner.
A partial survey of outstanding possessory interests indicate that
the total exceeds $1 billion with interests ranging from as little as
$100,000 to over $150 million. CBO estimates that 90 percent of the
contracts will come under the provisions of the new law within the next
5 years. If that is correct and my concerns are correct, the Interior
and related agencies appropriation accounts are facing somewhere
between $150 million and $200 million of additional unavoidable costs
each year. That is almost 20 percent of the entire budget for the
National Park Service just to buy out the existing possessory
interests. Those costs will come out of the limited funding available
for all the programs within that subcommittee, and all for no purpose.
The costs, however, do not end there. Without the possessory interest
and the right of renewal, there will be neither the collateral nor the
incentive for concessioners to maintain or expand visitor facilities.
Those expenses will fall on the National Park Service and the Federal
taxpayer. If any of you have spent the past 2 months driving the Clara
Barton memorial parking lot and pothole obstacle avoidance parkway, you
will have some idea of what the capability of the Park Service is to
maintain what they already have.
The claims of increased revenues will not happen. Concessioners will
still be limited in the charges they can exact from the visitor, and
will have to recapture the additional expenditures through lower, not
higher, franchise fees. The Federal deficit will simply increase.
Competition will not be enhanced, since smaller operations will not
have access to sufficient collateral. Larger corporations may well now
be able to force out the small family businesses which have provided
services in some of our parks for generations. That is not a policy we
should be encouraging.
Secretary Babbitt already has authority to gain increased franchise
fees, to negotiate the relinquishment of possessory interests, and the
obligation to provide quality services at reasonable rates to the
public. This legislation simply dismantles a system which works,
threatens park resources, raids the Treasury, jeopardizes the park
experience for the public, and all so we can say we reformed a
carefully crafted partnership which has provided Americans a National
Park System second to none in the world.
I ask unanimous consent that a letter from the Babbitt Brothers
Reading Co.--the Secretary's family business--be inserted in the Record
at this point. The Senate should find this opposition to the
Secretary's support more than a little interesting.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
Babbitt Bros. Trading Co.,
Flagstaff, AZ, March 11, 1994.
Mr. Roger G. Kennedy,
Director, National Park Service, U.S. Department of the
Interior, Washington, DC.
Dear Director Kennedy: I enjoyed your speech to the
National Parks Hospitality Association last week. The
challenges you face of downsizing and streamlining are the
same challenges that many businesses throughout the United
States have had to face.
Babbitts is no different. Over the past five years, we have
closed eight unprofitable retail locations and dramatically
cut our corporate overhead. Over the past five years, we have
dropped from 700 employees to 500 employees.
With one major exception, our approach to ensuring the
survival of a one-hundred-five-year-old company is similar to
your approach. In 1987 our company was carrying $20,500,000
in bank borrowings (a debt to equity ratio of 9:1). Our
survival plan included an aggressive approach to cutting
costs and reducing debt. In order to reduce our debt to a
manageable level, we had to sell and lease back some of our
operating properties.
The Park Service seems to want to acquire properties at the
expense of further increasing the national debt. There is no
question that amortizing possessory interest over a period of
time will result in lower concession fees and lower revenues
to the federal government.
I won't bore you with any further discussion of Senate Bill
208. I'm sure you understand all the pros and cons and the
concerns of the concessionaires. Many of those concerns were
discussed at the El Tovar Symposium last fall. I respectfully
request you consider suggesting two changes to the bill:
(1) grandfathering existing possessory interest thereby
honoring commitments made by the Park Service when
improvements were made in the parks; and,
(2) extending standards lengths of contracts to 15 years.
Fifteen year contracts would lessen the administrative burden
on the Park Service and would go a long way in ensuring that
future National Park improvements would be provided by
concessionaires.
As long as I am writing, I would like to bring to our
attention my concerns regarding the General Management Plan
at the Grand Canyon. I have enclosed copies of a letter I
sent to Bob Chandler and a copy of a letter from Steve
Carothers, president of the consulting firm, SWCA, regarding
the GMP. I believe my proposals are a reasonable compromise
and accomplish the parks objectives with minimal
environmental impact.
Babbitts has had a presence on the south rim of the Grand
Canyon since 1905. Our love and appreciation for the park is
deeply rooted in the family and our employees. I am concerned
about how our Board of Directors and shareholders may view
the proposed legislative changes. That coupled with the
uncertainty of future contract renewals and impacts from the
GMP may result in our company ``cashing out'' of the
business.
We may be just one of many smaller concessionaires leaving
the parks.
I hope you will see fit to intercede in the legislative
process.
Sincerely,
W. David Chambers,
President & CEO.
Mr. LAUNTENBERG. Madam President, I am pleased to rise in support of
S. 208, a compromise sponsored by Senators Bumpers, Johnston, and
Bennett. S. 208 reforms the Federal Government's system of contracting
with private concessions in national parks by bringing the management
of the concessions in line with today's standard business practices and
by eliminating the sweetheart deals with concessioners that have
plagued the taxpayer and our national parks for years.
This reform is long overdue. In the almost three decades since
Congress enacted the Concessions Policy Act of 1965, management of the
concessions in national parks has continued without reform. But reform
is needed now.
Madam President, since 1965, national parks have witnessed a dramatic
incerase in visitors and popularity. As a result, the business climate
for concessioners has improved. Concession incentives drafted in 1965--
like ensuring that the concessioners hold monopoly status, a
preferential right of renewal and possessory interest, and nominal
franchise fees--are not needed in the world of 1994. Today, such
incentives are enjoyed by few businesses in a free market; indeed, no
concessioner outside the national park system enjoys these deals.
S. 208 reforms the way Government does business with national park
concessioners and assures a fairer return on the taxpayer's dollar. In
1992, concessioners grossed $650 million and paid only $17.2 million in
fees. That is 2.6 percent of their gross revenues. Concessioners
outside the NPS system pay an average of 5 to 50 percent of gross.
This is no way to do business. For too long the Federal Government
has leased the use of its resources for rockbottom fees. Be it grazing
fees, logging on public lands, or hard rock mining claims, this method
of business has got to go.
Madam President, we all know that the Federal deficit is a major
concern. We continue to subsidize industries in ways that simply make
no sense. It is time to stop, and this bill is a good start.
It is estimated that the competition ensured in this bill may result
in increased franchise fees amounting to $40 million more dollars to
the Government. The bill will also establish a special account into
which the fees will be put that will go back to the parks, instead of
the General Treasury.
I have heard that this bill will create a number of dire scenarios--
that the national parks will fall in disarray and it will be the park
visitor who will truly bear the brunt of the failure. It is curious to
me that some of those who advocate the virtues of competition for
Government contracts are against this bill. I do not understand why
competition in general is good while competition in the national parks
will result in lower standards. I do not believe this, but it is
indicative of the gridlock that prevents reform.
This bill, a compromise bill, will result in fairer management of the
system, which will give the taxpayers a better bang for their buck
while enhancing the national parks that are one of our country's
greatest treasures.
I am proud to be a cosponsor of this legislation, and I urge my
colleagues to join me in supporting S. 208.
The PRESIDING OFFICER. The question is, Shall the bill, as amended,
pass? The yeas and nays have been ordered. The clerk will call the
roll.
The legislative clerk called the roll.
Mr. FORD. I announce that the Senator from Hawaii [Mr. Inouye] is
necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 90, nays 9, as follows:
[Rollcall Vote No. 63 Leg.]
YEAS--90
Akaka
Baucus
Bennett
Biden
Bingaman
Bond
Boren
Boxer
Bradley
Breaux
Brown
Bryan
Bumpers
Burns
Byrd
Campbell
Chafee
Coats
Cochran
Cohen
Conrad
Coverdell
Craig
D'Amato
Danforth
Daschle
DeConcini
Dodd
Dole
Domenici
Dorgan
Durenberger
Exon
Feingold
Feinstein
Ford
Glenn
Gorton
Graham
Gramm
Grassley
Gregg
Harkin
Hatch
Hatfield
Heflin
Hutchison
Jeffords
Johnston
Kassebaum
Kempthorne
Kennedy
Kerrey
Kerry
Kohl
Lautenberg
Leahy
Levin
Lieberman
Lott
Lugar
Mack
Mathews
McCain
McConnell
Metzenbaum
Mikulski
Mitchell
Moseley-Braun
Moynihan
Murray
Nickles
Nunn
Packwood
Pell
Pressler
Pryor
Reid
Riegle
Robb
Rockefeller
Roth
Sarbanes
Sasser
Simon
Smith
Specter
Warner
Wellstone
Wofford
NAYS--9
Faircloth
Helms
Hollings
Murkowski
Shelby
Simpson
Stevens
Thurmond
Wallop
NOT VOTING--1
Inouye
So the bill (S. 208), as amended, was passed, as follows:
S. 208
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.
Mr. MITCHELL. Madam President, I move to reconsider the vote by which
the bill, as amended, was passed.
Mr. BYRD. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
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