§ 5954. — Protection of concessioner investment.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 16USC5954]
TITLE 16--CONSERVATION
CHAPTER 79--NATIONAL PARK SERVICE MANAGEMENT
SUBCHAPTER III--NATIONAL PARK SERVICE CONCESSIONS MANAGEMENT
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.
