SECTION-BY-SECTION ANALYSIS Section 1 entitles the bill the "National Park Service Concessions Policy Reform Act of 1994." Section 2 contains the Congressional findings and policy. Section 4 repeals the Concessions Policy Act of 1965. The section provides that the repeal of the 1965 Act shall not affect the validity of existing concessions contracts, except that the provisions of this Act are to apply to existing contracts to the extent the provisions of this Act are not inconsistent with the express terms and conditions of the contract. Section 5 sets forth the concessions policy for the National Park Service. The section authorizes the Secretary of the Interior (the "Secretary") to permit necessary and appropriate concessions operations within National Parks, consistent with the provisions of this Act, laws relating generally to the management of units of the National Park System, and the specific park's general management plan, concessions plan, or other applicable plans. Section 6 provides for the awarding of concessions contracts through a competitive selection process. Subsection (a) states that except for temporary contracts awarded pursuant to subsection (b), and consistent with the preferential right of renewal for certain outfitter and guide concessioners, as well as for concessioners with annual gross revenues of less than $500,000, all contracts are to be awarded only through a competitive selection process. The Secretary is directed to promulgate appropriate regulations within 180 days after the date of enactment of this Act. Subsection (b) states that the Secretary may waive the competitive selection process and award a temporary concessions contract in order to avoid interruption of services to the public at a park. Subsection (c)(1) requires that the Secretary publish a notice of availability for a prospectus soliciting proposals at least once in local or national newspapers or trade publications, as appropriate, prior to soliciting proposals for a concessions contract at a park. Paragraph (2) states that the prospectus shall include the minimum contract requirements; the terms and conditions of the existing contract; other authorized facilities and services which may be proposed by an applicant; facilities and services to be provided by the Secretary for the concessioner; minimum public services to be provided by the Secretary; and such other non-privileged information as the Secretary determines is necessary to allow for the submission of competitive proposals. Subsection (d)(1) provides that the Secretary may not consider any proposal which fails to meet the minimum requirement as determined by the Secretary. The minimum requirements include, but are not limited to, the minimum acceptable franchise fee; the duration of the contract; the facilities, services, or capital investment required to be provided by the concessioner; and measures needed to ensure the protection and preservation of park resources. Paragraph (2) makes clear that the Secretary may reject any proposal, notwithstanding the franchise fee offered, if the Secretary determines that the applicant is not qualified, is likely to provide unsatisfactory service, or that the proposal is not responsive to the objectives of protecting and preserving the park or of providing necessary and appropriate services to the public at reasonable rates. Paragraph (3) directs the Secretary to establish new minimum requirements and reinitiate the competitive selection process if all proposals either fail to meet the minimum requirements or are rejected by the Secretary. Subsection (e) sets forth the criteria to be used by the Secretary in selecting the best proposal. The criteria include 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; the experience and related background of the applicant, including past performance and expertise in providing the same or similar services; the financial capability of the applicant; and the proposed franchise fee. The subsection makes clear that the consideration of revenue to the United States is to be subordinate to the objectives of protecting and preserving park resources and of providing necessary and appropriate facilities and services to the public at reasonable rates. Subsection (f) requires the Secretary to submit to the Committee on Energy and Natural Resources of the United States Senate and the Committee on Natural Resources of the U.S. House of Representatives any proposed concessions contract with anticipated gross receipts in excess of $5 million (indexed to 1993 constant dollars) or for a duration of ten or more years. The Secretary is prohibited from ratifying any proposed contract until at least 60 days after such Congressional notification. Subsection (g)(1) states that except as provided in paragraph (2), the Secretary shall not grant a concessioner a preferential right to renew a concessions contract. Paragraph (2) directs the Secretary to grant a preferential right of renewal for a concessions contract for outfitter or guide services, provided that the contract does not grant the concessioner an interest in any structure, fixture, or improvement (as provided in section 11). In addition, the Secretary is directed to grant a preferential right of renewal for any concessioner who the Secretary estimates will have annual gross revenues of no more than $500,000, regardless of whether such concessioner has an interest in any structure, fixture, or improvement pursuant to section 11. With respect to both the outfitter and guide concessioners and concessioners with gross revenues of $500,000 or less, the Secretary must determine that the concessioner has operated satisfactorily during the previous contract term, and that the concessioner's proposal for the new contract satisfies the minimum requirements established by the Secretary. Subsection (h) prohibits the Secretary from granting a concessioner a preferential right to provide new or additional services at a park. Section 7(a) provides that franchise fees, however stated, shall not be less than the minimum fee established by the Secretary for each contract. The Secretary is directed to determine the minimum fee 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. satisfactorily during the previous contract term. The Committee amendment would require, instead of authorize, that outfitter and guide concessioners be given a preferential right of renewal, provided that such concessioners did not have a possessory interest. In addition, the Secretary would be required to grant a preferential right of renewal to any concessioner with a contract that the Secretary estimates will have annual gross revenues of no more than $500,000, regardless of whether the concessioner had a possessory interest or not. In both cases, the Secretary would be required to find that the concessioner had operated satisfactorily during the previous contract term and that the concessioner's proposal for the new contract satisfied the minimum requirements established by the Secretary, before granting a preferential right of renewal. In addition, the amendment includes language directing the Secretary, in selecting the best proposal, to take into consideration the experience, expertise, and related background of the applicant in providing the same or similar services as required by the prospectus. PREFERENTIAL RIGHT TO PROVIDE ADDITIONAL SERVICES Like S. 208, the amendment prohibits the granting of a preferential right to a concessioner to provide new or additional services at a park. POSSESSORY INTEREST The amendment provides that any concessioner who currently has a possessory interest will retain that interest, as defined under the 1965 Act (either as provided in the concessions contract or "sound value") for the duration of the current contract. A concessioner who is covered by the 1965 Act, and who does not renew the contract, would be entitled to receive the value of the possessory interest, in most cases "sound value" as defined in the 1965 Act. A concessioner who is covered by the 1965 Act and renews the contract under this Act, would be required, as a condition of entering into the new contract, to begin reducing the value of the possessory interest (as of the termination of the previous contract), using straight line depreciation over the useful life of the asset. Such depreciation period may not exceed the depreciation period used for Federal income tax purposes for such asset. A concessioner who enters into a contract under this Act and builds a structure would have an interest in such structure equal to the actual original cost of construction, with the value to be depreciated over the useful life of the structure, not to exceed the depreciation period used for Federal income tax purposes for such asset. A concessioner who is not awarded the subsequent contract would be entitled to receive from the United States or a successor concessioner the depreciated, or book value, of the structure. As introduced, S. 208 provided for a depreciation period of 31.5 years. FRANCHISE FEES The amendment adds a provision that if multiple contracts are to be awarded to provide the same or similar outfitting, guide, river running, or other similar service at the same approximate resource or location within a part, the amendment requires the Secretary to establish an identical franchise fee for all such contracts, based on fair market value, as determined by the Secretary. USE OF FRANCHISE FEES The amendment provides that franchise fees are to be used for resource management and protection, maintenance activities, interpretation, and research. Fifty percent of the fees are to be allocated among the parks on the basis of need, as determined by the Secretary, and 50 percent are to be made available to parks in the same proportion as the percentage of total franchise fees collected by the park. This provision is identical to S. 208. PARK IMPROVEMENT FUND The amendment adds language directing the Secretary, where practicable, to require a concessioner to establish a park improvement fund in lieu of receiving all or a portion of the franchise fees. The fund would be used to finance activities and projects within the park consistent with the park's general management plan, and other applicable plans. CONGRESSIONAL FINDINGS S. 208 contained Congressional findings which stated that facilities should be provided within a park only when the private sector or other public agencies could not adequately provide such facilities within the vicinity of the park. The amendment deletes this provision, restates provisions from the 1965 Act, and adds language making clear that concessions facilities should be provided by the private sector, if possible. DUTIES OF THE SECRETARY The amendment adds language requiring the Secretary to set forth in any prospectus the facilities or services to be provided by the Secretary for the concessioner. In addition, the Secretary is directed to promulgate regulations to establish 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 the conditions or requirements, or is unable to provide the services contained in the prospectus. CONGRESSIONAL NOTIFICATION S. 208 would have required Committee review of any concessions contract with anticipated gross receipts of excess of $1 million or a duration of 10 years or more. The substitute raises the threshold to $5 million, indexed to 1993 constant dollars. PUBLIC REVIEW The amendment deletes a provision in S. 208 which would have required public review of concession related construction projects in excess of $1 million. The amendment is explained in detail in the section-by-section analysis, below. SECTION-BY-SECTION ANALYSIS Section 1 entitles the bill the “National Park Service Concessions Policy Reform Act of 1994." Section 2 contains the Congressional findings and policy. Section 4 repeals the Concessions Policy Act of 1965. The section provides that the repeal of the 1965 Act shall not affect the validity of existing concessions contracts, except that the provisions of this Act are to apply to existing contracts to the extent the provisions of this Act are not inconsistent with the express terms and conditions of the contract. Section 5 sets forth the concessions policy for the National Park Service. The section authorizes the Secretary of the Interior (the "Secretary") to permit necessary and appropriate concessions operations within National Parks, consistent with the provisions of this Act, laws relating generally to the management of units of the National Park System, and the specific park's general management plan, concessions plan, or other applicable plans. Section 6 provides for the awarding of concessions contracts through a competitive selection process. Subsection (a) states that except for temporary contracts awarded pursuant to subsection (b), and consistent with the preferential right of renewal for certain outfitter and guide concessioners, as well as for concessioners with annual gross revenues of less than $500,000, all contracts are to be awarded only through a competitive selection process. The Secretary is directed to promulgate appropriate regulations within 180 days after the date of enactment of this Act. Subsection (b) states that the Secretary may waive the competitive selection process and award a temporary concessions contract in order to avoid interruption of services to the public at a park. Subsection (c)(1) requires that the Secretary publish a notice of availability for a prospectus soliciting proposals at least once in local or national newspapers or trade publications, as appropriate, prior to soliciting proposals for a concessions contract at a park. Paragraph (2) states that the prospectus shall include the minimum contract requirements; the terms and conditions of the existing contract; other authorized facilities and services which may be proposed by an applicant; facilities and services to be provided by the Secretary for the concessioner; minimum public services to be provided by the Secretary; and such other non-privileged information as the Secretary determines is necessary to allow for the submission of competitive proposals. Subsection (d)(1) provides that the Secretary may not consider any proposal which fails to meet the minimum requirement as determined by the Secretary. The minimum requirements include, but are not limited to, the minimum acceptable franchise fee; the duration of the contract; the facilities, services, or capital investment required to be provided by the concessioner; and measures needed to ensure the protection and preservation of park resources. Paragraph (2) makes clear that the Secretary may reject any proposal, notwithstanding the franchise fee offered, if the Secretary determines that the applicant is not qualified, is likely to provide unsatisfactory service, or that the proposal is not responsive to the |