
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 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.
