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United States
TITLE 16 Conservation -- CHAPTER 79 National Parks Omnibus Management Act of 1998

From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 20, 2004]


[Document not affected by Public Laws enacted between
January 20, 2004 and December 23, 2004]
[CITE: 16USC5901]


TITLE 16--CONSERVATION

CHAPTER 79--NATIONAL PARK SERVICE MANAGEMENT

Sec. 5901. ``Secretary'' defined

As used in this chapter, the term ``Secretary'' means the Secretary
of the Interior, except as otherwise specifically provided.

(Pub. L. 105-391, Sec. 2, Nov. 13, 1998, 112 Stat. 3498.)

References in Text

This chapter, referred to in text, was in the original ``this Act'',
meaning Pub. L. 105-391, Nov. 13, 1998, 112 Stat. 3497, known as the
National Parks Omnibus Management Act of 1998. For complete
classification of this Act to the Code, see Short Title note below and
Tables.


Short Title

Pub. L. 105-391, Sec. 1(a), Nov. 13, 1998, 112 Stat. 3497, provided
that: ``This Act [enacting this chapter and section 19o of this title,
amending sections 1a-2, 1a-5, 1a-7, and 3 of this title, repealing
section 17b-1 and subchapter IV of chapter 1 of this title, and enacting
provisions set out as notes under this section and sections 1, 1a-5, 20,
470h-3, and 5951 of this title] may be cited as the `National Parks
Omnibus Management Act of 1998'.''
Pub. L. 105-391, title IV, Sec. 401, Nov. 13, 1998, 112 Stat. 3503,
provided that: ``This title [enacting subchapter III of this chapter,
amending sections 1a-7 and 3 of this title, repealing section 17b-1 and
subchapter IV of chapter 1 of this title, and enacting provisions set
out as a note under section 20 of this title] may be cited as the
`National Park Service Concessions Management Improvement Act of
1998'.''


Sec. 5911. Protection, interpretation, and research in National
Park System

Recognizing the ever increasing societal pressures being placed upon
America's unique natural and cultural resources contained in the
National Park System, the Secretary shall continually improve the
ability of the National Park Service to provide state-of-the-art
management, protection, and interpretation of and research on the
resources of the National Park System.

(Pub. L. 105-391, title I, Sec. 101, Nov. 13, 1998, 112 Stat. 3498.)


Sec. 5912. National Park Service employee training

The Secretary shall develop a comprehensive training program for
employees in all professional careers in the work force of the National
Park Service for the purpose of assuring that the work force has
available the best, up-to-date knowledge, skills and abilities with
which to manage, interpret and protect the resources of the National
Park System.

(Pub. L. 105-391, title I, Sec. 102, Nov. 13, 1998, 112 Stat. 3498.)

Sec. 5913. Management development and training

Within 2 years after November 13, 1998, the Secretary shall develop
a clear plan for management training and development, whereby career,
professional National Park Service employees from any appropriate
academic field may obtain sufficient training, experience, and
advancement opportunity to enable those qualified to move into park
management positions, including explicitly the position of
superintendent of a unit of the National Park System.

(Pub. L. 105-391, title I, Sec. 103, Nov. 13, 1998, 112 Stat. 3498.)


Sec. 5914. Park budgets and accountability


(a) Strategic and performance plans for each unit

Each unit of the National Park System shall prepare and make
available to the public a 5-year strategic plan and an annual
performance plan. Such plans shall reflect the National Park Service
policies, goals, and outcomes represented in the Service-wide Strategic
Plan, prepared pursuant to the provisions of the Government Performance
and Results Act of 1993 (Public Law 103-62; 107 Stat. 285).

(b) Annual budget for each unit

As a part of the annual performance plan for a unit of the National
Park System prepared pursuant to subsection (a) of this section,
following receipt of the appropriation for the unit from the Operations
of the National Park System account (but no later than January 1 of each
year), the superintendent of the unit shall develop and make available
to the public the budget for the current fiscal year for that unit. The
budget shall include, at a minimum, funding allocations for resource
preservation (including resource management), visitor services
(including maintenance, interpretation, law enforcement, and search and
rescue) and administration. The budget shall also include allocations
into each of the above categories of all funds retained from fees
collected for that year, including (but not limited to) special use
permits, concession franchise fees, and recreation use and entrance
fees.

(Pub. L. 105-391, title I, Sec. 104, Nov. 13, 1998, 112 Stat. 3499.)

References in Text

The Government Performance and Results Act of 1993, referred to in
subsec. (a), is Pub. L. 103-62, Aug. 3, 1993, 107 Stat. 285, which
enacted sections 1115 to 1119, 9703, and 9704 of Title 31, Money and
Finance, section 306 of Title 5, Government Organization and Employees,
and sections 2801 to 2805 of Title 39, Postal Service, amended section
1105 of Title 31, and enacted provisions set out as notes under sections
1101 and 1115 of Title 31. For complete classification of this Act to
the Code, see Short Title of 1993 Amendment note set out under section
1101 of Title 31 and Tables.


Sec. 5931. Purposes

The purposes of this subchapter are--
(1) to more effectively achieve the mission of the National Park
Service;
(2) to enhance management and protection of national park
resources by providing clear authority and direction for the conduct
of scientific study in the National Park System and to use the
information gathered for management purposes;
(3) to ensure appropriate documentation of resource conditions
in the National Park System;
(4) to encourage others to use the National Park System for
study to the benefit of park management as well as broader
scientific value, where such study is consistent with sections 1, 2,
3, and 4 of this title; and
(5) to encourage the publication and dissemination of
information derived from studies in the National Park System.

(Pub. L. 105-391, title II, Sec. 201, Nov. 13, 1998, 112 Stat. 3499.)


Sec. 5932. Research mandate

The Secretary is authorized and directed to assure that management
of units of the National Park System is enhanced by the availability and
utilization of a broad program of the highest quality science and
information.

(Pub. L. 105-391, title II, Sec. 202, Nov. 13, 1998, 112 Stat. 3499.)

Sec. 5933. Cooperative agreements


(a) Cooperative study units

The Secretary is authorized and directed to enter into cooperative
agreements with colleges and universities, including but not limited to
land grant schools, in partnership with other Federal and State
agencies, to establish cooperative study units to conduct multi-
disciplinary research and develop integrated information products on the
resources of the National Park System, or the larger region of which
parks are a part.

(b) Report

Within one year of November 13, 1998, the Secretary shall report to
the Committee on Energy and Natural Resources of the United States
Senate and the Committee on Resources of the House of Representatives on
progress in the establishment of a comprehensive network of such college
and university based cooperative study units as will provide full
geographic and topical coverage for research on the resources contained
in units of the National Park System and their larger regions.

(Pub. L. 105-391, title II, Sec. 203, Nov. 13, 1998, 112 Stat. 3500.)


Sec. 5934. Inventory and monitoring program

The Secretary shall undertake a program of inventory and monitoring
of National Park System resources to establish baseline information and
to provide information on the long-term trends in the condition of
National Park System resources. The monitoring program shall be
developed in cooperation with other Federal monitoring and information
collection efforts to ensure a cost-effective approach.

(Pub. L. 105-391, title II, Sec. 204, Nov. 13, 1998, 112 Stat. 3500.)


Sec. 5935. Availability for scientific study


(a) In general

The Secretary may solicit, receive, and consider requests from
Federal or non-Federal public or private agencies, organizations,
individuals, or other entities for the use of any unit of the National
Park System for purposes of scientific study.

(b) Criteria

A request for use of a unit of the National Park System under
subsection (a) of this section may only be approved if the Secretary
determines that the proposed study--
(1) is consistent with applicable laws and National Park Service
management policies; and
(2) will be conducted in a manner as to pose no threat to park
resources or public enjoyment derived from those resources.

(c) Fee waiver

The Secretary may waive any park admission or recreational use fee
in order to facilitate the conduct of scientific study under this
section.

(d) Negotiations

The Secretary may enter into negotiations with the research
community and private industry for equitable, efficient benefits-sharing
arrangements.

(Pub. L. 105-391, title II, Sec. 205, Nov. 13, 1998, 112 Stat. 3500.)


Sec. 5936. Integration of study results into management
decisions

The Secretary shall take such measures as are necessary to assure
the full and proper utilization of the results of scientific study for
park management decisions. In each case in which an action undertaken by
the National Park Service may cause a significant adverse effect on a
park resource, the administrative record shall reflect the manner in
which unit resource studies have been considered. The trend in the
condition of resources of the National Park System shall be a
significant factor in the annual performance evaluation of each
superintendent of a unit of the National Park System.

(Pub. L. 105-391, title II, Sec. 206, Nov. 13, 1998, 112 Stat. 3500.)


Sec. 5937. Confidentiality of information

Information concerning the nature and specific location of a
National Park System resource which is endangered, threatened, rare, or
commercially valuable, of mineral or paleontological objects within
units of the National Park System, or of objects of cultural patrimony
within units of the National Park System, may be withheld from the
public in response to a request under section 552 of title 5, unless the
Secretary determines that--
(1) disclosure of the information would further the purposes of
the unit of the National Park System in which the resource or object
is located and would not create an unreasonable risk of harm, theft,
or destruction of the resource or object, including individual
organic or inorganic specimens; and
(2) disclosure is consistent with other applicable laws
protecting the resource or object.

(Pub. L. 105-391, title II, Sec. 207, Nov. 13, 1998, 112 Stat. 3501.)



Sec. 5951. Congressional findings and statement of policy


(a) Findings

In furtherance of sections 1, 2, 3, and 4 of this title, which
directs the Secretary to administer units of the National Park System in
accordance with the fundamental purpose of conserving their scenery,
wildlife, and 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 hereby finds that the preservation
and conservation of park resources and values requires that such public
accommodations, facilities, and services as have to be provided within
such units should be provided only under carefully controlled safeguards
against unregulated and indiscriminate use, so that--
(1) visitation will not unduly impair these resources and
values; and
(2) development of public accommodations, facilities, and
services within such units can best be limited to locations that are
consistent to the highest practicable degree with the preservation
and conservation of the resources and values of such units.

(b) Policy

It is the policy of the Congress that the development of public
accommodations, facilities, and services in units of the National Park
System shall be limited to those accommodations, facilities, and
services that--
(1) are necessary and appropriate for public use and enjoyment
of the unit of the National Park System in which they are located;
and
(2) are consistent to the highest practicable degree with the
preservation and conservation of the resources and values of the
unit.

(Pub. L. 105-391, title IV, Sec. 402, Nov. 13, 1998, 112 Stat. 3503.)


Short Title

For short title of this subchapter as the ``National Park Service
Concessions Management Improvement Act of 1998'', see section 401 of
Pub. L. 105-391, set out as a note under section 5901 of this title.


Savings Provision

Pub. L. 105-391, title IV, Sec. 419, Nov. 13, 1998, 112 Stat. 3517,
provided that:
``(a) Treatment of Glacier Bay Concession Permits Prospectus.--
Nothing contained in this title [see Short Title note set out under
section 5901 of this title] shall authorize or require the Secretary to
withdraw, revise, amend, modify, or reissue the February 19, 1998,
Prospectus Under Which Concession Permits Will be Open for Competition
for the Operation of Cruise Ship Services Within Glacier Bay National
Park and Preserve (in this section referred to as the `1998 Glacier Bay
Prospectus'). The award of concession permits pursuant to the 1998
Glacier Bay Prospectus shall be under provisions of existing law at the
time the 1998 Glacier Bay Prospectus was issued.
``(b) Preferential Right of Renewal.--Notwithstanding any provision
of this title, the Secretary, in awarding future Glacier Bay cruise ship
concession permits covering cruise ship entries for which a preferential
right of renewal existed prior to the effective date of this title
[probably means the date of enactment of title IV of Pub. L. 105-391,
which was approved Nov. 13, 1998], shall provide for such cruise ship
entries a preferential right of renewal, as described in subparagraphs
(C) and (D) of section 403(7) [16 U.S.C. 5952(7)(C), (D)]. Any Glacier
Bay concession permit awarded under the authority contained in this
subsection shall expire by December 31, 2009.''


Alaska National Interest Lands Conservation Act

Pub. L. 105-391, title IV, Sec. 415(c), Nov. 13, 1998, 112 Stat.
3516, provided that: ``Nothing in this title [see Short Title note set
out under section 5901 of this title] amends, supersedes, or otherwise
affects any provision of the Alaska National Interest Lands Conservation
Act (16 U.S.C. 3101 et seq.) relating to revenue-producing visitor
services.''


Sec. 5952. Award of concessions contracts

In furtherance of the findings and policy stated in section 5951 of
this title, and except as provided by this subchapter or otherwise
authorized by law, the Secretary shall utilize concessions contracts to
authorize a person, corporation, or other entity to provide
accommodations, facilities, and services to visitors to units of the
National Park System. Such concessions contracts shall be awarded as
follows:

(1) Competitive selection process

Except as otherwise provided in this section, all proposed
concessions contracts shall be awarded by the Secretary to the
person, corporation, or other entity submitting the best proposal,
as determined by the Secretary through a competitive selection
process. Such competitive process shall include simplified
procedures for small, individually-owned, concessions contracts.

(2) Solicitation of proposals

Except as otherwise provided in this section, prior to awarding
a new concessions contract (including renewals or extensions of
existing concessions contracts) the Secretary shall publicly solicit
proposals for the concessions contract and, in connection with such
solicitation, the Secretary shall prepare a prospectus and shall
publish notice of its availability at least once in local or
national newspapers or trade publications, and/or the Commerce
Business Daily, as appropriate, and shall make the prospectus
available upon request to all interested parties.

(3) Prospectus

The prospectus shall include the following information:
(A) The minimum requirements for such contract as set forth
in paragraph (4).
(B) The terms and conditions of any existing concessions
contract relating to the services and facilities to be provided,
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 public access, utilities,
and buildings.
(E) An estimate of the amount of compensation, if any, due
an existing concessioner from a new concessioner under the terms
of a prior concessions contract.
(F) A statement as to the weight to be given to each
selection factor identified in the prospectus and the relative
importance of such factors in the selection process.
(G) Such other information related to the proposed
concessions operation as is provided to the Secretary pursuant
to a concessions contract or is otherwise available to the
Secretary, as the Secretary determines is necessary to allow for
the submission of competitive proposals.
(H) Where applicable, a description of a preferential right
to the renewal of the proposed concessions contract held by an
existing concessioner as set forth in paragraph (7).

(4) Minimum requirements

(A) No proposal shall be considered which fails to meet the
minimum requirements as determined by the Secretary. Such minimum
requirements shall include the following:
(i) The minimum acceptable franchise fee or other forms of
consideration to the Government.
(ii) Any facilities, services, or capital investment
required to be provided by the concessioner.
(iii) Measures necessary to ensure the protection,
conservation, and preservation of resources of the unit of the
National Park System.

(B) The Secretary shall reject any proposal, regardless of the
franchise fee offered, if the Secretary determines that the person,
corporation, or entity is not qualified, is not likely to provide
satisfactory service, or that the proposal is not responsive to the
objectives of protecting and preserving resources of the unit of the
National Park System and of providing necessary and appropriate
facilities and services to the public at reasonable rates.
(C) 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.
(D) The Secretary may not execute a concessions contract which
materially amends or does not incorporate the proposed terms and
conditions of the concessions contract as set forth in the
applicable prospectus. If proposed material amendments or changes
are considered appropriate by the Secretary, the Secretary shall
resolicit offers for the concessions contract incorporating such
material amendments or changes.

(5) Selection of the best proposal

(A) In selecting the best proposal, the Secretary shall consider
the following principal factors:
(i) The responsiveness of the proposal to the objectives of
protecting, conserving, and preserving resources of the unit of
the National Park System and of providing necessary and
appropriate facilities and services to the public at reasonable
rates.
(ii) The experience and related background of the person,
corporation, or entity submitting the proposal, including the
past performance and expertise of such person, corporation or
entity in providing the same or similar facilities or services.
(iii) The financial capability of the person, corporation,
or entity submitting the proposal.
(iv) The proposed franchise fee, except that consideration
of revenue to the United States shall be subordinate to the
objectives of protecting, conserving, and preserving resources
of the unit of the National Park System and of providing
necessary and appropriate facilities to the public at reasonable
rates.

(B) The Secretary may also consider such secondary factors as
the Secretary deems appropriate.
(C) In developing regulations to implement this subchapter, the
Secretary shall consider the extent to which plans for employment of
Indians (including Native Alaskans) and involvement of businesses
owned by Indians, Indian tribes, or Native Alaskans in the operation
of a concession, contracts should be identified as a factor in the
selection of a best proposal under this section.

(6) Congressional notification

The Secretary shall submit any proposed concessions contract
with anticipated annual gross receipts in excess of $5,000,000 or a
duration of more than 10 years to the Committee on Resources of the
House of Representatives and the Committee on Energy and Natural
Resources of the Senate. The Secretary shall not award any such
proposed contract until at least 60 days subsequent to the
notification of both committees.

(7) Preferential right of renewal

(A) Except as provided in subparagraph (B), the Secretary shall
not grant a concessioner a preferential right to renew a concessions
contract, or any other form of preference to a concessions contract.
(B) The Secretary shall grant a preferential right of renewal to
an existing concessioner with respect to proposed renewals of the
categories of concessions contracts described by paragraph (8),
subject to the requirements of that paragraph.
(C) As used in this subchapter, the term ``preferential right of
renewal'' means that the Secretary, subject to a determination by
the Secretary that the facilities or services authorized by a prior
contract continue to be necessary and appropriate within the meaning
of section 5951 of this title, shall allow a concessioner qualifying
for a preferential right of renewal the opportunity to match the
terms and conditions of any competing proposal which the Secretary
determines to be the best proposal for a proposed new concessions
contract which authorizes the continuation of the facilities and
services provided by the concessioner under its prior contract.
(D) A concessioner which successfully exercises a preferential
right of renewal in accordance with the requirements of this
subchapter shall be entitled to award of the proposed new
concessions contract to which such preference applies.

(8) Outfitter and guide services and small contracts

(A) The provisions of paragraph (7) shall apply only to the
following:
(i) Subject to subparagraph (B), outfitting and guide
concessions contracts.
(ii) Subject to subparagraph (C), concessions contracts with
anticipated annual gross receipts under $500,000.

(B) For the purposes of this subchapter, an ``outfitting and
guide concessions contract'' means a concessions contract which
solely authorizes the provision of specialized backcountry outdoor
recreation guide services which require the employment of specially
trained and experienced guides to accompany park visitors in the
backcountry so as to provide a safe and enjoyable experience for
visitors who otherwise may not have the skills and equipment to
engage in such activity. Outfitting and guide concessioners, where
otherwise qualified, include concessioners which provide guided
river running, hunting, fishing, horseback, camping, and
mountaineering experiences. An outfitting and guide concessioner is
entitled to a preferential right of renewal under this subchapter
only if--
(i) the contract with the outfitting and guide concessioner
does not grant the concessioner any interest, including any
leasehold surrender interest or possessory interest, in capital
improvements on lands owned by the United States within a unit
of the National Park System, other than a capital improvement
constructed by a concessioner pursuant to the terms of a
concessions contract prior to November 13, 1998, or constructed
or owned by a concessioner or his or her predecessor before the
subject land was incorporated into the National Park System;
(ii) the Secretary determines that the concessioner has
operated satisfactorily during the term of the contract
(including any extension thereof); and
(iii) the concessioner has submitted a responsive proposal
for a proposed new contract which satisfies the minimum
requirements established by the Secretary pursuant to paragraph
(4).

(C) A concessioner that holds a concessions contract that the
Secretary estimates will result in gross annual receipts of less
than $500,000 if renewed shall be entitled to a preferential right
of renewal under this subchapter if--
(i) the Secretary has determined that the concessioner has
operated satisfactorily during the term of the contract
(including any extension thereof); and
(ii) the concessioner has submitted a responsive proposal
for a proposed new concessions contract which satisfies the
minimum requirements established by the Secretary pursuant to
paragraph (4).

(9) New or additional services

The Secretary shall not grant a preferential right to a
concessioner to provide new or additional services in a unit of the
National Park System.

(10) Secretarial authority

Nothing in this subchapter shall be construed as limiting the
authority of the Secretary to determine whether to issue a
concessions contract or to establish its terms and conditions in
furtherance of the policies expressed in this subchapter.

(11) Exceptions

Notwithstanding the provisions of this section, the Secretary
may award, without public solicitation, the following:
(A) A temporary concessions contract or an extension of an
existing concessions contract for a term not to exceed 3 years
in order to avoid interruption of services to the public at a
unit of the National Park System, except that prior to making
such an award, the Secretary shall take all reasonable and
appropriate steps to consider alternatives to avoid such
interruption.
(B) A concessions contract in extraordinary circumstances
where compelling and equitable considerations require the award
of a concessions contract to a particular party in the public
interest. Such award of a concessions contract shall not be made
by the Secretary until at least 30 days after publication in the
Federal Register of notice of the Secretary's intention to do so
and the reasons for such action, and submission of notice to the
Committee on Energy and Natural Resources of the Senate and the
Committee on Resources of the House of Representatives.

(Pub. L. 105-391, title IV, Sec. 403, Nov. 13, 1998, 112 Stat. 3504.)

References in Text

This subchapter, referred to in text, was in the original ``this
title'', meaning title IV of Pub. L. 105-391, Nov. 13, 1998, 112 Stat.
3503, which is classified principally to this subchapter. For complete
classification of title IV to the Code, see Short Title note set out
under section 5901 of this title and Tables.


Sec. 5953. Term of concessions contracts

A concessions contract entered into pursuant to this subchapter
shall generally be awarded for a term of 10 years or less. However, the
Secretary may award a contract for a term of up to 20 years if the
Secretary determines that the contract terms and conditions, including
the required construction of capital improvements, warrant a longer
term.

(Pub. L. 105-391, title IV, Sec. 404, Nov. 13, 1998, 112 Stat. 3508;
Pub. L. 106-176, title III, Sec. 311, Mar. 10, 2000, 114 Stat. 34.)


Amendments

2000--Pub. L. 106-176, which directed the substitution of ``contract
terms and conditions,'' for ``conract terms and conditions,'', could not
be executed because the words ''conract terms and conditions,'' did not
appear.


Sec. 5954. Protection of concessioner investment


(a) Leasehold surrender interest under new concessions contracts

On or after November 13, 1998, a concessioner that constructs a
capital improvement upon land owned by the United States within a unit
of the National Park System pursuant to a concessions contract shall
have a leasehold surrender interest in such capital improvement subject
to the following terms and conditions:
(1) A concessioner shall have a leasehold surrender interest in
each capital improvement constructed by a concessioner under a
concessions contract, consisting solely of a right to compensation
for the capital improvement to the extent of the value of the
concessioner's leasehold surrender interest in the capital
improvement.
(2) A leasehold surrender interest--
(A) may be pledged as security for financing of a capital
improvement or the acquisition of a concessions contract when
approved by the Secretary pursuant to this subchapter;
(B) shall be transferred by the concessioner in connection
with any transfer of the concessions contract and may be
relinquished or waived by the concessioner; and
(C) shall not be extinguished by the expiration or other
termination of a concessions contract and may not be taken for
public use except on payment of just compensation.

(3) The value of a leasehold surrender interest in a capital
improvement shall be an amount equal to the initial value
(construction cost of the capital improvement), increased (or
decreased) in the same percentage increase (or decrease) as the
percentage increase (or decrease) in the Consumer Price Index, from
the date of making the investment in the capital improvement by the
concessioner to the date of payment of the value of the leasehold
surrender interest, less depreciation of the capital improvement as
evidenced by the condition and prospective serviceability in
comparison with a new unit of like kind.
(4) Effective 9 years after November 13, 1998, the Secretary may
provide, in any particular new concession contract the Secretary
estimates will have a leasehold surrender interest of more than
$10,000,000, that the value of any leasehold surrender interest in a
capital improvement shall be based on either (A) a reduction on an
annual basis, in equal portions, over the same number of years as
the time period associated with the straight line depreciation of
the initial value (construction cost of the capital improvement), as
provided by applicable Federal income tax laws and regulations in
effect on the day before November 13, 1998, or (B) such alternative
formula that is consistent with the objectives of this subchapter.
The Secretary may only use such an alternative formula if the
Secretary determines, after scrutiny of the financial and other
circumstances involved in this particular concession contract
(including providing notice in the Federal Register and opportunity
for comment), that such alternative formula is, compared to the
standard method of determining value provided for in paragraph (3),
necessary in order to provide a fair return to the Government and to
foster competition for the new contract by providing a reasonable
opportunity to make a profit under the new contract. If no
responsive offers are received in response to a solicitation that
includes such an alternative formula, the concession opportunity
shall be resolicited with the leasehold surrender interest value as
described in paragraph (3).
(5) Where a concessioner, pursuant to the terms of a concessions
contract, makes a capital improvement to an existing capital
improvement in which the concessioner has a leasehold surrender
interest, the cost of such additional capital improvement shall be
added to the then current value of the concessioner's leasehold
surrender interest.

(b) Special rule for existing possessory interest

(1) A concessioner which has obtained a possessory interest as
defined pursuant to Public Law 89-249 (commonly known as the National
Park Service Concessions Policy Act; 16 U.S.C. 20 et seq.), as in effect
on the day before November 13, 1998, under the terms of a concessions
contract entered into before November 13, 1998, shall, upon the
expiration or termination of such contract, be entitled to receive
compensation for such possessory interest improvements in the amount and
manner as described by such concessions contract. Where such a
possessory interest is not described in the existing contract,
compensation of possessory interest shall be determined in accordance
with the laws in effect on the day before November 13, 1998.
(2) In the event such prior concessioner is awarded a new
concessions contract after the effective date of this subchapter
replacing an existing concessions contract, the existing concessioner
shall, instead of directly receiving such possessory interest
compensation, have a leasehold surrender interest in its existing
possessory interest improvements under the terms of the new contract and
shall carry over as the initial value of such leasehold surrender
interest (instead of construction cost) an amount equal to the value of
the existing possessory interest as of the termination date of the
previous contract. In the event of a dispute between the concessioner
and the Secretary as to the value of such possessory interest, the
matter shall be resolved through binding arbitration.
(3) In the event that a new concessioner is awarded a concessions
contract and is required to pay a prior concessioner for possessory
interest in prior improvements, the new concessioner shall have a
leasehold surrender interest in such prior improvements and the initial
value in such leasehold surrender interest (instead of construction
cost), shall be an amount equal to the value of the existing possessory
interest as of the termination date of the previous contract.

(c) Transition to successor concessioner

Upon expiration or termination of a concessions contract entered
into after the effective date of this subchapter, a concessioner shall
be entitled under the terms of the concessions contract to receive from
the United States or a successor concessioner the value of any leasehold
surrender interest in a capital improvement as of the date of such
expiration or termination. A successor concessioner shall have a
leasehold surrender interest in such capital improvement under the terms
of a new contract and the initial value of the leasehold surrender
interest in such capital improvement (instead of construction cost)
shall be the amount of money the new concessioner is required to pay the
prior concessioner for its leasehold surrender interest under the terms
of the prior concessions contract.

(d) Title to improvements

Title to any capital improvement constructed by a concessioner on
lands owned by the United States in a unit of the National Park System
shall be vested in the United States.

(e) Definitions

For purposes of this section:

(1) Consumer Price Index

The term ``Consumer Price Index'' means the ``Consumer Price
Index--All Urban Consumers'' published by the Bureau of Labor
Statistics of the Department of Labor, unless such index is not
published, in which case another regularly published cost-of-living
index approximating the Consumer Price Index shall be utilized by
the Secretary; and

(2) Capital improvement

The term ``capital improvement'' means a structure, fixture, or
nonremovable equipment provided by a concessioner pursuant to the
terms of a concessions contract and located on lands of the United
States within a unit of the National Park System.

(f) Special reporting requirement

Not later than 7 years after November 13, 1998, the Secretary shall
submit a report to the Committee on Energy and Natural Resources of the
Senate and the Committee on Resources of the House of Representatives
containing a complete analysis of the concession program as well as--
(1) an assessment of competition in the solicitation of
prospectuses, fair and/or increased return to the Government, and
improvement of concession facilities and infrastructure; and
(2) an assessment of any problems with the management and
administration of the concession program that are a direct result of
the implementation of the provisions of this subchapter.

(Pub. L. 105-391, title IV, Sec. 405, Nov. 13, 1998, 112 Stat. 3508.)

References in Text

The Federal income tax laws, referred to in subsec. (a)(4), are
classified generally to Title 26, Internal Revenue Code.
The National Park Service Concessions Policy Act, referred to in
subsec. (b)(1), is Pub. L. 89-249, Oct. 9, 1965, 79 Stat. 969, which was
classified generally to subchapter IV (Sec. 20 et seq.) of chapter 1 of
this title prior to repeal by Pub. L. 105-391, title IV, Sec. 415(a),
Nov. 13, 1998, 112 Stat. 3515.
The effective date of this subchapter, referred to in subsecs.
(b)(2) and (c), probably means the date of enactment of this subchapter,
which was approved Nov. 13, 1998.


Sec. 5955. Reasonableness of rates


(a) In general

Each concessions contract shall permit the concessioner to set
reasonable and appropriate rates and charges for facilities, goods, and
services provided to the public, subject to approval under subsection
(b) of this section.

(b) Approval by Secretary required

A concessioner's rates and charges to the public shall be subject to
approval by the Secretary. The approval process utilized by the
Secretary shall be as prompt and as unburdensome to the concessioner as
possible and shall rely on market forces to establish reasonableness of
rates and charges to the maximum extent practicable. The Secretary shall
approve rates and charges that the Secretary determines to be reasonable
and appropriate. Unless otherwise provided in the contract, the
reasonableness and appropriateness of rates and charges shall be
determined primarily by comparison with those rates and charges for
facilities, goods, and services of comparable character under similar
conditions, with due consideration to the following factors and other
factors deemed relevant by the Secretary: length of season, peakloads,
average percentage of occupancy, accessibility, availability and costs
of labor and materials, and type of patronage. Such rates and charges
may not exceed the market rates and charges for comparable facilities,
goods, and services, after taking into account the factors referred to
in the preceding sentence.

(c) Implementation of recommendations

Not later than 6 months after receiving recommendations from the
Advisory Board established under section 5958(a) of this title regarding
concessioner rates and charges to the public, the Secretary shall
implement the recommendations or report to the Congress the reasons for
not implementing the recommendations.

(Pub. L. 105-391, title IV, Sec. 406, Nov. 13, 1998, 112 Stat. 3510.)

Sec. 5956. Franchise fees


(a) In general

A concessions contract shall provide for payment to the government
of a franchise fee or such other monetary consideration as determined by
the Secretary, upon consideration of the probable value to the
concessioner of the privileges granted by the particular contract
involved. Such probable value shall be based upon a reasonable
opportunity for net profit in relation to capital invested and the
obligations of the contract. Consideration of revenue to the United
States shall be subordinate to the objectives of protecting and
preserving park areas and of providing necessary and appropriate
services for visitors at reasonable rates.

(b) Amount of franchise fee

The amount of the franchise fee or other monetary consideration paid
to the United States for the term of the concessions contract shall be
specified in the concessions contract and may only be modified to
reflect extraordinary unanticipated changes from the conditions
anticipated as of the effective date of the contract. The Secretary
shall include in concessions contracts with a term of more than 5 years
a provision which allows reconsideration of the franchise fee at the
request of the Secretary or the concessioner in the event of such
extraordinary unanticipated changes. Such provision shall provide for
binding arbitration in the event that the Secretary and the concessioner
are unable to agree upon an adjustment to the franchise fee in these
circumstances.

(c) Special account

All franchise fees (and other monetary consideration) paid to the
United States pursuant to concessions contracts shall be deposited into
a special account established in the Treasury of the United States.
Twenty percent of the funds deposited in the special account shall be
available for expenditure by the Secretary, without further
appropriation, to support activities throughout the National Park System
regardless of the unit of the National Park System in which the funds
were collected. The funds deposited into the special account shall
remain available until expended.

(d) Subaccount for each unit

There shall be established within the special account required under
subsection (c) of this section a subaccount for each unit of the
National Park System. Each subaccount shall be credited with 80 percent
of the franchise fees (and other monetary consideration) collected at a
single unit of the National Park System under concessions contracts. The
funds credited to the subaccount for a unit of the National Park System
shall be available for expenditure by the Secretary, without further
appropriation, for use at the unit for visitor services and for purposes
of funding high-priority and urgently necessary resource management
programs and operations. The funds credited to a subaccount shall remain
available until expended.

(Pub. L. 105-391, title IV, Sec. 407, Nov. 13, 1998, 112 Stat. 3511.)

Sec. 5957. Transfer of concessions contracts


(a) Approval of Secretary

No concessions contract or leasehold surrender interest may be
transferred, assigned, sold, or otherwise conveyed or pledged by a
concessioner without prior written notification to, and approval by, the
Secretary.

(b) Conditions

The Secretary shall approve a transfer or conveyance described in
subsection (a) of this section unless the Secretary finds that--
(1) the individual, corporation or entity seeking to acquire a
concessions contract is not qualified or able to satisfy the terms
and conditions of the concessions contract;
(2) such transfer or conveyance would have an adverse impact on
(A) the protection, conservation, or preservation of the resources
of the unit of the National Park System or (B) the provision of
necessary and appropriate facilities and services to visitors at
reasonable rates and charges; and
(3) the terms of such transfer or conveyance are likely,
directly or indirectly, to reduce the concessioner's opportunity for
a reasonable profit over the remaining term of the contract,
adversely affect the quality of facilities and services provided by
the concessioner, or result in a need for increased rates and
charges to the public to maintain the quality of such facilities and
services.

(c) Transfer terms

The terms and conditions of any contract under this section shall
not be subject to modification or open to renegotiation by the Secretary
because of a transfer or conveyance described in subsection (a) of this
section, unless such transfer or conveyance would have an adverse impact
as described in paragraph (2) of subsection (b) of this section.

(Pub. L. 105-391, title IV, Sec. 408, Nov. 13, 1998, 112 Stat. 3512.)

Sec. 5958. National Park Service Concessions Management Advisory
Board


(a) Establishment

There is hereby established a National Park Service Concessions
Management Advisory Board (in this subchapter referred to as the
``Advisory Board'') whose purpose shall be to advise the Secretary and
National Park Service on matters relating to management of concessions
in the National Park System.

(b) Duties

(1) Advice

The Advisory Board shall advise on each of the following:
(A) Policies and procedures intended to assure that services
and facilities provided by concessioners are necessary and
appropriate, meet acceptable standards at reasonable rates with
a minimum of impact on park resources and values, and provide
the concessioners with a reasonable opportunity to make a
profit.
(B) Ways to make National Park Service concessions programs
and procedures more cost effective, more process efficient, less
burdensome, and timelier.

(2) Recommendations

The Advisory Board shall make recommendations to the Secretary
regarding each of the following:
(A) National Park Service contracting with the private
sector to conduct appropriate elements of concessions management
and providing recommendations to make more efficient, less
burdensome, and timelier the review or approval of concessioner
rates and charges to the public.
(B) The nature and scope of products which qualify as
Indian, Alaska Native, and Native Hawaiian handicrafts within
this \1\ meaning of this subchapter.
---------------------------------------------------------------------------
\1\ So in original. Probably should be ``the''.
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(C) The allocation of concession fees.

The initial recommendations under subparagraph (A) relating to rates
and charges shall be submitted to the Secretary not later than one
year after the first meeting of the Board.

(3) Annual report

The Advisory Board, commencing with the first anniversary of its
initial meeting, shall provide an annual report on its activities to
the Committee on Resources of the United States House of
Representatives and the Committee on Energy and Natural Resources of
the United States Senate.

(c) Advisory Board membership

Members of the Advisory Board shall be appointed on a staggered
basis by the Secretary for a term not to exceed 4 years and shall serve
at the pleasure of the Secretary. The Advisory Board shall be comprised
of not more than seven individuals appointed from among citizens of the
United States not in the employment of the Federal Government and not in
the employment of or having an interest in a National Park Service
concession. Of the seven members of the Advisory Board--
(1) one member shall be privately employed in the hospitality
industry and have both broad knowledge of hotel or food service
management and experience in the parks and recreation concessions
business;(2) one member shall be privately employed in the tourism (continued)