54 U.S.C. §§ 101901- 101926 - Concessions Management Improvement Act of 1998

Page 45

TITLE 54—NATIONAL PARK SERVICE AND RELATED PROGRAMS

CHAPTER 1019—CONCESSIONS AND
COMMERCIAL USE AUTHORIZATIONS
SUBCHAPTER I—AUTHORITY OF SECRETARY
Sec.

101901.

Utility services.

SUBCHAPTER II—COMMERCIAL VISITOR
SERVICES
101911.
101912.
101913.
101914.
101915.
101916.
101917.
101918.

Definitions.
Findings and declaration of policy.
Award of concession contracts.
Term of concession contracts.
Protection of concessioner investment.
Reasonableness of rates and charges.
Franchise fees.
Transfer or conveyance of concession contracts or leasehold surrender interests.
National Park Service Concessions Management Advisory Board.
Contracting for services.
Multiple contracts within a System unit.
Use of nonmonetary consideration in concession contracts.
Recordkeeping requirements.
Promotion of sale of Indian, Alaska Native,
Native Samoan, and Native Hawaiian
handicrafts.
Commercial use authorizations.
Regulations.

101919.
101920.
101921.
101922.
101923.
101924.

101925.
101926.

CODIFICATION
Pub. L. 114–289, title VII, § 701, Dec. 16, 2016, 130 Stat.
1492, added subchapter III of this chapter without corresponding amendment of chapter analysis. For analysis of subchapter III, see table of sections set out preceding section 101931 of this title.

SUBCHAPTER I—AUTHORITY OF
SECRETARY
§ 101901. Utility services
To facilitate the administration of the System, the Secretary, under such terms and conditions as the Secretary considers advisable, may
furnish, on a reimbursement of appropriation
basis, all types of utility services to concessioners, contractors, permittees, or other users
of the services, within the System. The reimbursements for cost of the services may be credited to the appropriation current at the time reimbursements are received.
(Pub. L. 113–287, § 3, Dec. 19, 2014, 128 Stat. 3137.)
HISTORICAL AND REVISION NOTES
Revised
Section

Source (U.S. Code)

Source (Statutes at Large)

101901 .........

16 U.S.C. 1b (matter
before (1)).

Aug. 8, 1953, ch. 384, § 1 (matter before (1)), (4), 67 Stat.
495; Pub. L. 91–383, § 2(a),
Aug. 18, 1970, 84 Stat. 826.

16 U.S.C. 1b(4).

The words ‘‘and he may use applicable appropriations
for the aforesaid system for the following purposes’’ are
omitted as unnecessary.

SUBCHAPTER II—COMMERCIAL VISITOR
SERVICES
§ 101911. Definitions
In this subchapter:
(1) ADVISORY BOARD.—The term ‘‘Advisory
Board’’ means the National Park Service Concessions Management Advisory Board established under section 101919 of this title.

§ 101912

(2) PREFERENTIAL RIGHT OF RENEWAL.—The
term ‘‘preferential right of renewal’’ means
the right of a concessioner, 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 101912 of this title, to
match the terms and conditions of any competing proposal that the Secretary determines
to be the best proposal for a proposed new concession contract that authorizes the continuation of the facilities and services provided by
the concessioner under its prior contract.
(Pub. L. 113–287, § 3, Dec. 19, 2014, 128 Stat. 3138.)
HISTORICAL AND REVISION NOTES
Revised
Section
101911(1) .....
101911(2) .....

Source (U.S. Code)
no source.
16 U.S.C. 5952(7)(C).

Source (Statutes at Large)

Pub. L. 105–391, title IV,
§ 403(7)(C), Nov. 13, 1998,
112 Stat. 3506.

SAVINGS PROVISION
Pub. L. 105–391, title IV, § 419, Nov. 13, 1998, 112 Stat.
3517, provided that:
‘‘(a) TREATMENT OF GLACIER BAY CONCESSION PERMITS
PROSPECTUS.—Nothing contained in this title [enacting
former sections 5951 to 5966 of Title 16, Conservation,
which were repealed and restated in sections 101911 et
seq. and 101524 of this title, amending former sections
1a–7 and 3 of Title 16, repealing section 17b–1 and subchapter IV of chapter 1 of Title 16, and enacting provisions set out as notes under this section and sections
100101 and 101912 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) [see 54 U.S.C.
101911(2), 101913(7)(C)]. 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, § 415(c), Nov. 13, 1998, 112
Stat. 3516, provided that: ‘‘Nothing in this title [enacting former sections 5951 to 5966 of Title 16, Conservation, which were repealed and restated in sections
101911 et seq. and 101524 of this title, amending former
sections 1a–7 and 3 of Title 16, repealing section 17b–1
and subchapter IV of chapter 1 of Title 16, and enacting
provisions set out as notes under this section and sections 100101 and 101912 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.’’

§ 101912. Findings and declaration of policy
(a) FINDINGS.—In furtherance of section
100101(a), Congress finds that the preservation

§ 101913

TITLE 54—NATIONAL PARK SERVICE AND RELATED PROGRAMS

and conservation of System unit resources and
values requires that public accommodations, facilities, and services that have to be provided
within those System units should be provided
only under carefully controlled safeguards
against unregulated and indiscriminate use, so
that—
(1) visitation will not unduly impair those
resources and values; and
(2) development of public accommodations,
facilities, and services within System 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 the System units.
(b) DECLARATION OF POLICY.—It is the policy of
Congress that the development of public accommodations, facilities, and services in System
units shall be limited to accommodations, facilities, and services that—
(1) are necessary and appropriate for public
use and enjoyment of the System unit 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 System unit.
(Pub. L. 113–287, § 3, Dec. 19, 2014, 128 Stat. 3138.)
HISTORICAL AND REVISION NOTES
Revised
Section
101912 .........

Source (U.S. Code)
16 U.S.C. 5951.

Source (Statutes at Large)
Pub. L. 105–391, title IV,
§ 402, Nov. 13, 1998, 112
Stat. 3503.

In subsection (a), the words ‘‘section 100101(a)’’ are
substituted for ‘‘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’’ to
give a more precise cross reference because section
100101(a) of the new title is where that direction to the
Secretary is restated.
REPEAL OF NATIONAL PARK SERVICE CONCESSIONS
POLICY ACT; SAVINGS PROVISION
Pub. L. 105–391, title IV, § 415(a), Nov. 13, 1998, 112
Stat. 3515, provided that: ‘‘Public Law 89–249 (commonly known as the National Park Service Concessions
Policy Act; 16 U.S.C. 20 et seq.) is repealed. The repeal
of such Act shall not affect the validity of any concessions contract or permit entered into under such Act,
but the provisions of this title [enacting former sections 5951 to 5966 of Title 16, Conservation, which were
repealed and restated in sections 101911 et seq. and
101524 of this title, amending former sections 1a–7 and
3 of Title 16, repealing section 17b–1 and subchapter IV
of chapter 1 of Title 16, and enacting provisions set out
as notes under this section and sections 100101 and
101911 of this title] shall apply to any such contract or
permit except to the extent such provisions are inconsistent with the terms and conditions of any such contract or permit. References in this title to concessions
contracts awarded under authority of such Act also
apply to concessions permits awarded under such authority.’’

§ 101913. Award of concession contracts
In furtherance of the findings and policy stated in section 101912 of this title, and except as
provided by this subchapter or otherwise author-

Page 46

ized by law, the Secretary shall utilize concession contracts to authorize a person, corporation, or other entity to provide accommodations, facilities, and services to visitors to System units. Concession contracts shall be awarded as follows:
(1) COMPETITIVE SELECTION PROCESS.—Except
as otherwise provided in this section, all proposed concession 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. The competitive
process shall include simplified procedures for
small, individually-owned entities seeking
award of a concession contract.
(2) SOLICITATION OF PROPOSALS.—Except as
otherwise provided in this section, prior to
awarding a new concession contract (including
renewals or extensions of existing concession
contracts) the Secretary—
(A) shall publicly solicit proposals for the
concession contract; and
(B) in connection with the solicitation,
shall—
(i) prepare a prospectus and publish notice of its availability at least once in
local or national newspapers or trade publications, by electronic means, or both, as
appropriate; and
(ii) make the prospectus available on request to all interested persons.
(3) INFORMATION TO BE INCLUDED IN PROSPECTUS.—The prospectus shall include the following information:
(A) The minimum requirements for the
contract as set forth in paragraph (4).
(B) The terms and conditions of any existing concession 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
that may be provided in a proposal.
(D) Facilities and services to be provided
by the Secretary to the concessioner, including public access, utilities, and buildings.
(E) An estimate of the amount of compensation due an existing concessioner from
a new concessioner under the terms of a
prior concession contract.
(F) A statement as to the weight to be
given to each selection factor identified in
the prospectus and the relative importance
of those factors in the selection process.
(G) Other information related to the proposed concession operation that is provided
to the Secretary pursuant to a concession
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 concession contract held by an existing concessioner as set forth in paragraph
(7).
(4) CONSIDERATION OF PROPOSALS.—
(A) MINIMUM REQUIREMENTS.—No proposal
shall be considered that fails to meet the

Page 47

TITLE 54—NATIONAL PARK SERVICE AND RELATED PROGRAMS

minimum requirements as determined by
the Secretary. The minimum requirements
shall include the following:
(i) The minimum acceptable franchise
fee or other forms of consideration to the
Federal 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 System unit.
(B) REJECTION OF PROPOSAL.—The Secretary shall reject any proposal, regardless
of the franchise fee offered, if the Secretary
determines that—
(i) the person, corporation, or entity is
not qualified or is not likely to provide
satisfactory service; or
(ii) the proposal is not responsive to the
objectives of protecting and preserving resources of the System unit and of providing necessary and appropriate facilities
and services to the public at reasonable
rates.
(C) ALL PROPOSALS FAIL TO MEET MIMIMUM 1
REQUIREMENTS OR ARE REJECTED.—If all proposals submitted to the Secretary 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) TERMS AND CONDITIONS MATERIALLY
AMENDED OR NOT INCORPORATED IN CONTRACT.—The Secretary may not execute a
concession contract that materially amends
or does not incorporate the proposed terms
and conditions of the concession 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 concession contract incorporating the material
amendments or changes.
(5) SELECTION OF THE BEST PROPOSAL.—
(A) FACTORS IN SELECTION.—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 System
unit 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 the 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
1 So

in original. Probably should be ‘‘MINIMUM’’.

§ 101913

preserving resources of the System unit
and of providing necessary and appropriate
facilities to the public at reasonable rates.
(B) SECONDARY FACTORS.—The Secretary
may also consider such secondary factors as
the Secretary considers appropriate.
(C) DEVELOPMENT OF REGULATIONS.—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 contract should be identified
as a factor in the selection of a best proposal
under this section.
(6) CONGRESSIONAL NOTIFICATION.—
(A) IN GENERAL.—The Secretary shall submit any proposed concession contract with
anticipated annual gross receipts in excess
of $5,000,000 or a duration of more than 10
years to the Committee on Natural Resources of the House of Representatives and
the Committee on Energy and Natural Resources of the Senate.
(B) WAITING PERIOD.—The Secretary shall
not award any proposed concession contract
to which subparagraph (A) applies until at
least 60 days subsequent to the notification
of both Committees.
(7) PREFERENTIAL RIGHT OF RENEWAL.—
(A) IN GENERAL.—Except as provided in
subparagraph (B), the Secretary shall not
grant a concessioner a preferential right to
renew a concession contract, or any other
form of preference to a concession contract.
(B) EXCEPTION.—The Secretary shall grant
a preferential right of renewal to an existing
concessioner with respect to proposed renewals of the categories of concession contracts
described by paragraph (8), subject to the requirements of that paragraph.
(C) ENTITLEMENT TO AWARD OF NEW CONTRACT.—A concessioner that successfully exercises a preferential right of renewal in accordance with the requirements of this subchapter shall be entitled to award of the proposed new concession contract to which the
preference applies.
(8) OUTFITTER AND GUIDE SERVICES AND SMALL
CONTRACTS.—
(A) APPLICATION.—Paragraph (7) shall
apply only to the following:
(i) Subject to subparagraph (B), concession contracts that solely authorize the
provision of specialized backcountry outdoor recreation guide services that require
the employment of specially trained and
experienced guides to accompany System
unit 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 that activity.
(ii) Subject to subparagraph (C), concession contracts with anticipated annual
gross receipts under $500,000.
(B)
OUTFITTING
SIONERS.—

AND

GUIDE

CONCES-

§ 101914

TITLE 54—NATIONAL PARK SERVICE AND RELATED PROGRAMS

(i) DESCRIPTION.—Outfitting and guide
concessioners, where otherwise qualified,
include concessioners that provide guided
river running, hunting, fishing, horseback,
camping, and mountaineering experiences.
(ii) WHEN ENTITLED TO PREFERENTIAL
RIGHT.—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 land owned by the United States
within a System unit, other than a capital improvement constructed by a concessioner pursuant to the terms of a concession contract prior to November 13,
1998, or constructed or owned by a concessioner or the concessioner’s predecessor before the subject land was incorporated into the System;
(II) the Secretary determines that the
concessioner has operated satisfactorily
during the term of the contract (including any extension); and
(III) the concessioner has submitted a
responsive proposal for a proposed new
concession contract that satisfies the
minimum requirements established by
the Secretary pursuant to paragraph (4).
(C) CONTRACT WITH ESTIMATED GROSS RECEIPTS OF LESS THAN $500,000.—A concessioner
that holds a concession 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); and
(ii) the concessioner has submitted a responsive proposal for a proposed new concession contract that satisfies the minimum requirements established by the Secretary pursuant to paragraph (4).
(9) NEW OR ADDITIONAL SERVICES.—The Secretary may propose to amend the applicable
terms of an existing concessions contract to
provide new and additional services where the
Secretary determines the services are necessary and appropriate for public use and enjoyment of the unit of the National Park System in which they are located and are consistent to the highest practicable degree with the
preservation and conservation of the resources
and values of the unit. Such new and additional services shall not represent a material
change to the required and authorized services
as set forth in the applicable prospectus or
contract.
(10) AUTHORITY OF SECRETARY NOT LIMITED.—
Nothing in this subchapter shall be construed
as limiting the authority of the Secretary to
determine whether to issue a concession contract or to establish its terms and conditions
in furtherance of the policies expressed in this
subchapter.

Page 48

(11) EXCEPTIONS.—Notwithstanding this section, the Secretary may award, without public
solicitation, the following:
(A) TEMPORARY CONTRACT.—To avoid interruption of services to the public at a System
unit, the Secretary may award a temporary
concession contract or an extension of an existing concessions contract for a term not to
exceed 3 years, except that prior to making
the award, the Secretary shall take all reasonable and appropriate steps to consider alternatives to avoid the interruption.
(B) CONTRACT IN EXTRAORDINARY CIRCUMSTANCES.—The Secretary may award a concession contract in extraordinary circumstances where compelling and equitable considerations require the award of a concession
contract to a particular party in the public
interest. Award of a concession contract
under this subparagraph shall not be made
by the Secretary until at least 30 days
after—
(i) publication in the Federal Register of
notice of the Secretary’s intention to
award the contract and the reasons for the
action; and
(ii) submission of notice to the Committee on Energy and Natural Resources of
the Senate and the Committee on Natural
Resources of the House of Representatives.
(Pub. L. 113–287, § 3, Dec. 19, 2014, 128 Stat. 3138;
Pub. L. 114–289, title V, § 502, Dec. 16, 2016, 130
Stat. 1490.)
HISTORICAL AND REVISION NOTES
Revised
Section
101913 .........

Source (U.S. Code)
16 U.S.C. 5952 (less
(7)(C)).

Source (Statutes at Large)
Pub. L. 105–391, title IV, § 403
(less (7)(C)), Nov. 13, 1998,
112 Stat. 3504.

In paragraph (1), the words ‘‘entities seeking award of
a concession contract’’ are substituted for ‘‘concessions
contracts’’ for clarity.
In paragraph (2)(B)(i), the words ‘‘by electronic
means’’ are substituted for ‘‘the Commerce Business
Daily’’ to eliminate obsolete words. Federal Business
Opportunities is the designated single point of universal electronic public access for publication of all procurement information and notices previously published
in the Commerce Business Daily. See 66 Fed. Reg. 27407,
May 16, 2001, 68 Fed. Reg. 56678, October 1, 2003, 48 CFR
ch. 1, subch. B, part 5, and the special notice posted in
CBDNet on December 28, 2001, and printed on January
2, 2002.
In paragraph (5)(C), the words ‘‘concession contract’’
are substituted for ‘‘concession, contracts’’ to correct
an error in the source provision.
In paragraph (8)(B)(ii)(III), the word ‘‘concession’’ is
added for consistency in this subchapter.
AMENDMENTS
2016—Par. (9). Pub. L. 114–289 amended par. (9) generally. Prior to amendment, text read as follows: ‘‘The
Secretary shall not grant a preferential right to a concessioner to provide new or additional services in a
System unit.’’

§ 101914. Term of concession contracts
A concession contract entered into pursuant
to this subchapter shall generally be awarded
for a term of 10 years or less. The Secretary may
award a contract for a term of up to 20 years if
the Secretary determines that the contract

Page 49

TITLE 54—NATIONAL PARK SERVICE AND RELATED PROGRAMS

terms and conditions, including the required
construction of capital improvements, warrant a
longer term.
(Pub. L. 113–287, § 3, Dec. 19, 2014, 128 Stat. 3142.)
HISTORICAL AND REVISION NOTES
Revised
Section
101914 .........

Source (U.S. Code)
16 U.S.C. 5953.

Source (Statutes at Large)
Pub. L. 105–391, title IV,
§ 404, Nov. 13, 1998, 112
Stat. 3508; Pub. L. 106–176,
title III, § 311, Mar. 10,
2000, 114 Stat. 34.

§ 101915. Protection of concessioner investment
(a) DEFINITIONS.—In this section:
(1) CAPITAL IMPROVEMENT.—The term ‘‘capital improvement’’ means a structure, a fixture, or nonremovable equipment provided by
a concessioner pursuant to the terms of a concession contract and located on land of the
United States within a System unit.
(2) CONSUMER PRICE INDEX.—The term ‘‘Consumer Price Index’’ means—
(A) the ‘‘Consumer Price Index—All Urban
Consumers’’ published by the Bureau of
Labor Statistics of the Department of Labor;
or
(B) if the Index is not published, another
regularly published cost-of-living index approximating the Consumer Price Index.
(b) LEASEHOLD SURRENDER INTEREST IN CAPIMPROVEMENTS.—A concessioner that constructs a capital improvement on land owned by
the United States within a System unit pursuant to a concession contract shall have a leasehold surrender interest in the capital improvement subject to the following terms and conditions:
(1) IN GENERAL.—A concessioner shall have a
leasehold surrender interest in each capital
improvement constructed by a concessioner
under a concession 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) PLEDGE AS SECURITY.—A leasehold surrender interest may be pledged as security for financing of a capital improvement or the acquisition of a concession contract when approved by the Secretary pursuant to this subchapter.
(3) TRANSFER AND RELINQUISHMENT OR WAIVER
OF INTEREST.—A leasehold surrender interest
shall be transferred by the concessioner in
connection with any transfer of the concession
contract and may be relinquished or waived by
the concessioner.
(4) LIMIT ON EXTINGUISHING OR TAKING INTEREST.—A leasehold surrender interest shall not
be extinguished by the expiration or other termination of a concession contract and may
not be taken for public use except on payment
of just compensation.
(5) VALUE OF INTEREST.—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) by the
same percentage increase (or decrease) as the

ITAL

§ 101915

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.
(6) VALUE OF INTEREST IN CERTAIN NEW CONCESSION CONTRACTS.—
(A) HOW VALUE IS DETERMINED.—The Secretary may provide, in any new concession
contract that 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—
(i) 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 November 12, 1998; or
(ii) an alternative formula that is consistent with the objectives of this subchapter.
(B) WHEN ALTERNATIVE FORMULA MAY BE
USED.—The Secretary may use an alternative formula under subparagraph (A)(ii)
only if the Secretary determines, after scrutiny of the financial and other circumstances involved in the particular concession
contract (including providing notice in the
Federal Register and opportunity for comment), that the alternative formula is, compared to the standard method of determining
value provided for in paragraph (5), necessary to provide a fair return to the Federal
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
the alternative formula, the concession opportunity shall be resolicited with the leasehold surrender interest value as described in
paragraph (5).
(7) INCREASE IN VALUE OF INTEREST.—Where a
concessioner, pursuant to the terms of a concession contract, makes a capital improvement to an existing capital improvement in
which the concessioner has a leasehold surrender interest, the cost of the additional capital
improvement shall be added to the then-current value of the concessioner’s leasehold surrender interest.
(c) SPECIAL RULE FOR POSSESSORY INTEREST
EXISTING BEFORE NOVEMBER 13, 1998.—
(1) IN GENERAL.—A concessioner that has obtained a possessory interest (as defined pursuant to the Act of October 9, 1965 (known as the
National Park Service Concessions Policy Act;
Public Law 89–249, 79 Stat. 969), as in effect on
November 12, 1998) under the terms of a concession contract entered into before November
13, 1998, shall, on the expiration or termination of the concession contract, be entitled

§ 101916

TITLE 54—NATIONAL PARK SERVICE AND RELATED PROGRAMS

to receive compensation for the possessory interest improvements in the amount and manner as described by the concession contract.
Where that possessory interest is not described in the existing concession contract,
compensation of possessory interest shall be
determined in accordance with the laws in effect on November 12, 1998.
(2) EXISTING CONCESSIONER AWARDED A NEW
CONTRACT.—A concessioner awarded a new concession contract to replace an existing concession contract after November 13, 1998, instead
of directly receiving the possessory interest
compensation, shall have a leasehold surrender interest in its existing possessory interest
improvements under the terms of the new concession contract and shall carry over as the
initial value of the 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 concession contract. In the event of a
dispute between the concessioner and the Secretary as to the value of the possessory interest, the matter shall be resolved through binding arbitration.
(3) NEW CONCESSIONER AWARDED A CONTRACT.—A new concessioner awarded a concession contract and required to pay a prior concessioner for possessory interest in prior improvements shall have a leasehold surrender
interest in the prior improvements. The initial
value in the 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 concession contract.
(4) DE NOVO REVIEW OF VALUE DETERMINATION.—If the Secretary, or either party to a
value determination proceeding conducted
under a Service concession contract issued before November 13, 1998, considers that the
value determination decision issued pursuant
to the proceeding misinterprets or misapplies
relevant contractual requirements or their underlying legal authority, the Secretary or either party may seek, within 180 days after the
date of the decision, de novo review of the
value determination decision by the United
States Court of Federal Claims. The Court of
Federal Claims may make an order affirming,
vacating, modifying or correcting the determination decision.
(d) TRANSITION TO SUCCESSOR CONCESSIONER.—
On expiration or termination of a concession
contract entered into after November 13, 1998, a
concessioner shall be entitled under the terms of
the concession 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 the expiration or termination. A successor concessioner
shall have a leasehold surrender interest in the
capital improvement under the terms of a new
concession contract and the initial value of the
leasehold surrender interest in the 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 concession contract.

Page 50

(e) TITLE TO IMPROVEMENTS.—Title to any capital improvement constructed by a concessioner
on land owned by the United States in a System
unit shall be vested in the United States.
(Pub. L. 113–287, § 3, Dec. 19, 2014, 128 Stat. 3143.)
HISTORICAL AND REVISION NOTES
Revised
Section

Source (U.S. Code)

101915(a) .....

16 U.S.C. 5954(e).

101915(b) .....
101915(c)(1)
through
(3).
101915(c)(4)

16 U.S.C. 5954(a).
16 U.S.C. 5954(b).

101915(d),
(e).

16 U.S.C. 5954 note.

Source (Statutes at Large)
Pub. L. 105–391, title IV,
§ 405(a) through (e), Nov.
13, 1998, 112 Stat. 3508.

Pub. L. 110–161, div. F, title
I (1st paragraph under
heading ‘‘ADMINISTRATIVE
PROVISIONS’’ under heading
‘‘NATIONAL
PARK
SERVICE’’), Dec. 26, 2007,
121 Stat. 2107.

16 U.S.C. 5954(c), (d).

In subsection (b), before paragraph (1), the words ‘‘On
and after November 13, 1998’’ are omitted as obsolete. In
paragraph (6)(A), the words ‘‘Effective 9 years after November 13, 1998’’ are omitted as obsolete.
In subsection (c)(4), the words ‘‘For fiscal years 2008
and hereafter’’ are omitted as obsolete.
REFERENCES IN TEXT
The Act of October 9, 1965, known as the National
Park Service Concessions Policy Act, referred to in
subsec. (c)(1), is Pub. L. 89–249, Oct. 9, 1965, 79 Stat. 969,
which enacted subchapter IV (§ 20 et seq.) of chapter 1
of Title 16, Conservation, and amended section 462 of
Title 16, prior to being repealed by Pub. L. 105–391, title
IV, § 415(a), Nov. 13, 1998, 112 Stat. 3515.

§ 101916. Reasonableness of rates and charges
(a) IN GENERAL.—A concession 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).
(b) APPROVAL BY SECRETARY REQUIRED.—
(1) FACTORS TO CONSIDER.—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 concession 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:
(A) Length of season.
(B) Peakloads.
(C) Average percentage of occupancy.
(D) Accessibility.
(E) Availability and costs of labor and materials.
(F) Type of patronage.
(2) RATES AND CHARGES NOT TO EXCEED MARKET RATES AND CHARGES.—Rates and charges

Page 51

TITLE 54—NATIONAL PARK SERVICE AND RELATED PROGRAMS

may not exceed the market rates and charges
for comparable facilities, goods, and services,
after taking into account the factors referred
to in paragraph (1).
(c) IMPLEMENTATION OF RECOMMENDATIONS.—
Not later than 6 months after receiving recommendations from the Advisory Board regarding
concessioner rates and charges to the public, the
Secretary shall implement the recommendations or report to Congress the reasons for not
implementing the recommendations.
(Pub. L. 113–287, § 3, Dec. 19, 2014, 128 Stat. 3145.)
HISTORICAL AND REVISION NOTES
Revised
Section
101916 .........

§ 101918

Each subaccount shall be credited with 80 percent of the franchise fees (and other monetary
consideration) collected at a single System
unit under concession contracts. The funds
credited to the subaccount for a System unit
shall be available for expenditure by the Secretary, without further appropriation, for use
at the System 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. 113–287, § 3, Dec. 19, 2014, 128 Stat. 3146.)
HISTORICAL AND REVISION NOTES

Source (U.S. Code)
16 U.S.C. 5955.

Source (Statutes at Large)
Pub. L. 105–391, title IV,
§ 406, Nov. 13, 1998, 112
Stat. 3510.

Revised
Section
101917 .........

Source (U.S. Code)
16 U.S.C. 5956.

Source (Statutes at Large)
Pub. L. 105–391, title IV,
§ 407, Nov. 13, 1998, 112
Stat. 3511.

§ 101917. Franchise fees
(a) IN GENERAL.—A concession contract shall
provide for payment to the Federal Government
of a franchise fee or other monetary consideration as determined by the Secretary, on consideration of the probable value to the concessioner
of the privileges granted by the particular contract involved. Probable value shall be based on
a reasonable opportunity for net profit in relation to capital invested and the obligations of
the concession contract. Consideration of revenue to the United States shall be subordinate to
the objectives of protecting and preserving System units and of providing necessary and appropriate services for visitors at reasonable rates.
(b) PROVISIONS TO BE SPECIFIED IN CONTRACT.—
The amount of the franchise fee or other monetary consideration paid to the United States for
the term of the concession contract shall be
specified in the concession contract and may be
modified only to reflect extraordinary unanticipated changes from the conditions anticipated
as of the effective date of the concession contract. The Secretary shall include in concession
contracts with a term of more than 5 years a
provision that allows reconsideration of the
franchise fee at the request of the Secretary or
the concessioner in the event of extraordinary
unanticipated changes. The provision shall provide for binding arbitration in the event that
the Secretary and the concessioner are unable
to agree on an adjustment to the franchise fee in
those circumstances.
(c) SPECIAL ACCOUNT IN TREASURY.—
(1) DEPOSIT AND AVAILABILITY.—All franchise
fees (and other monetary consideration) paid
to the United States pursuant to concession
contracts shall be deposited in a special account established in the Treasury. 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 System
regardless of the System unit in which the
funds were collected. The funds deposited in
the special account shall remain available
until expended.
(2) SUBACCOUNT FOR EACH SYSTEM UNIT.—
There shall be established within the special
account a subaccount for each System unit.

§ 101918. Transfer or conveyance of concession
contracts or leasehold surrender interests
(a) APPROVAL OF SECRETARY.—No concession
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) unless the Secretary finds that—
(1) the individual, corporation, or other entity seeking to acquire a concession contract
is not qualified or able to satisfy the terms
and conditions of the concession contract;
(2) the transfer or conveyance would have an
adverse impact on—
(A) the protection, conservation, or preservation of the resources of the System unit;
or
(B) the provision of necessary and appropriate facilities and services to visitors at
reasonable rates and charges; and
(3) the terms of the transfer or conveyance
are likely, directly or indirectly, to—
(A) reduce the concessioner’s opportunity
for a reasonable profit over the remaining
term of the concession contract;
(B) adversely affect the quality of facilities and services provided by the concessioner; or
(C) result in a need for increased rates and
charges to the public to maintain the quality of the facilities and services.
(c) MODIFICATION OR RENEGOTIATION OF
TERMS.—The terms and conditions of any concession 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) unless the
transfer or conveyance would have an adverse
impact as described in subsection (b)(2).
(Pub. L. 113–287, § 3, Dec. 19, 2014, 128 Stat. 3147.)

§ 101919

TITLE 54—NATIONAL PARK SERVICE AND RELATED PROGRAMS
HISTORICAL AND REVISION NOTES

Revised
Section
101918 .........

Source (U.S. Code)
16 U.S.C. 5957.

Source (Statutes at Large)
Pub. L. 105–391, title IV,
§ 408, Nov. 13, 1998, 112
Stat. 3512.

In subsection (b)(1), the word ‘‘other’’ is added for
consistency in the subchapter. See section 101926 of the
revised title.

§ 101919. National Park Service
Management Advisory Board

Concessions

(a) ESTABLISHMENT AND PURPOSE.—There is a
National Park Service Concessions Management
Advisory Board whose purpose shall be to advise
the Secretary and Service on matters relating
to management of concessions in the System.
(b) DUTIES.—
(1) ADVICE.—The Advisory Board shall advise
on each of the following:
(A) Policies and procedures intended to ensure that services and facilities provided by
concessioners—
(i) are necessary and appropriate;
(ii) meet acceptable standards at reasonable rates with a minimum of impact on
System unit resources and values; and
(iii) provide the concessioners with a
reasonable opportunity to make a profit.
(B) Ways to make Service concession 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) The Service contracting with the private sector to conduct appropriate elements
of concession management.
(B) Ways to make the review or approval
of concessioner rates and charges to the public more efficient, less burdensome, and
timelier.
(C) The nature and scope of products that
qualify as Indian, Alaska Native, and Native
Hawaiian handicrafts within the meaning of
this subchapter.
(D) The allocation of concession fees.
(3) ANNUAL REPORT.—The Advisory Board
shall provide an annual report on its activities
to the Committee on Natural Resources of the
House of Representatives and the Committee
on Energy and Natural Resources of the 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 7 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 Service concession. Of the 7 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 concession business;

Page 52

(2) one member shall be privately employed
in the tourism industry;
(3) one member shall be privately employed
in the accounting industry;
(4) one member shall be privately employed
in the outfitting and guide industry;
(5) one member shall be a State government
employee with expertise in park concession
management;
(6) one member shall be active in promotion
of traditional arts and crafts; and
(7) one member shall be active in a nonprofit
conservation organization involved in parks
and recreation programs.
(d) SERVICE ON ADVISORY BOARD.—Service of
an individual as a member of the Advisory
Board shall not be deemed to be service or employment bringing the individual within the
provisions of any Federal law relating to conflicts of interest or otherwise imposing restrictions, requirements, or penalties in relation to
the employment of individuals, the performance
of services, or the payment or receipt of compensation in connection with claims, proceedings, or matters involving the United States.
Service as a member of the Advisory Board shall
not be deemed service in an appointive or elective position in the Federal Government for purposes of section 8344 of title 5 or other comparable provisions of Federal law.
(e) TERMINATION.—The Advisory Board shall
continue to exist until December 31, 2009. In all
other respects, it shall be subject to the Federal
Advisory Committee Act (5 U.S.C. App.).
(Pub. L. 113–287, § 3, Dec. 19, 2014, 128 Stat. 3147.)
HISTORICAL AND REVISION NOTES
Revised
Section

Source (U.S. Code)

101919(a)
through
(c).

16 U.S.C. 5958(a)
through (c).

101919(d) .....
101919(e) .....

16 U.S.C. 5958(e).
16 U.S.C. 5958(d).

Source (Statutes at Large)
Pub. L. 105–391, title IV,
§ 409, Nov. 13, 1998, 112
Stat. 3512; Pub. L. 111–11,
subtitle VII, subtitle E,
§ 7403, 123 Stat. 1219.

In subsection (b)(2), the text of 16 U.S.C. 5958(b)(2)
(last sentence) is omitted as obsolete.
In subsection (b)(3), the words ‘‘commencing with the
first anniversary of its initial meeting’’ are omitted as
obsolete.
In subsection (d), the word ‘‘deemed’’ is substituted
for ‘‘considered as’’ for consistency in this title and
with other titles of the United States Code.
REFERENCES IN TEXT
The Federal Advisory Committee Act, referred to in
subsec. (e), is Pub. L. 92–463, Oct. 6, 1972, 86 Stat. 770,
which is set out in the Appendix to Title 5, Government
Organization and Employees.

§ 101920. Contracting for services
(a) CONTRACTING AUTHORIZED.—
(1) MANAGEMENT ELEMENTS FOR WHICH CONTRACT REQUIRED TO MAXIMUM EXTENT PRACTICABLE.—To the maximum extent practicable, the Secretary shall contract with private entities to conduct or assist in elements
of the management of the Service concession
program considered by the Secretary to be
suitable for non-Federal performance. Those
management elements shall include each of
the following:

Page 53

TITLE 54—NATIONAL PARK SERVICE AND RELATED PROGRAMS

(A) Health and safety inspections.
(B) Quality control of concession operations and facilities.
(C) Strategic capital planning for concession facilities.
(D) Analysis of rates and charges to the
public.
(2) MANAGEMENT ELEMENTS FOR WHICH CONTRACT ALLOWED.—The Secretary may also contract with private entities to assist the Secretary with each of the following:
(A) Preparation of the financial aspects of
prospectuses for Service concession contracts.
(B) Development of guidelines for a System capital improvement and maintenance
program for all concession occupied facilities.
(C) Making recommendations to the Director regarding the conduct of annual audits of
concession fee expenditures.
(b) OTHER MANAGEMENT ELEMENTS.—The Secretary shall consider, taking into account the
recommendations of the Advisory Board, contracting out other elements of the concessions
management program, as appropriate.
(c) AUTHORITY OF SECRETARY NOT DIMINISHED.—Nothing in this section shall diminish
the governmental responsibilities and authority
of the Secretary to administer concession contracts and activities pursuant to this subchapter
and section 100101(a), chapter 1003, and sections
100751(a), 100752, 100753, and 102101 of this title.
The Secretary reserves the right to make the
final decision or contract approval on contracting services dealing with the management of the
Service concessions program under this section.
(Pub. L. 113–287, § 3, Dec. 19, 2014, 128 Stat. 3149.)
HISTORICAL AND REVISION NOTES
Revised
Section
101920 .........

Source (U.S. Code)
16 U.S.C. 5959.

Source (Statutes at Large)
Pub. L. 105–391, title IV,
§ 410, Nov. 13, 1998, 112
Stat. 3514.

§ 101922. Use of nonmonetary consideration in
concession contracts
Section 1302 of title 40 shall not apply to concession contracts awarded by the Secretary pursuant to this subchapter.
(Pub. L. 113–287, § 3, Dec. 19, 2014, 128 Stat. 3150.)
HISTORICAL AND REVISION NOTES
Revised
Section
101922 .........

If multiple concession contracts are awarded
to authorize concessioners to provide the same
or similar outfitting, guiding, river running, or
other similar services at the same approximate
location or resource within a System unit, the
Secretary shall establish a comparable franchise
fee structure for those contracts or similar contracts, except that the terms and conditions of
any existing concession contract shall not be
subject to modification or open to renegotiation
by the Secretary because of an award of a new
contract at the same approximate location or
resource.
(Pub. L. 113–287, § 3, Dec. 19, 2014, 128 Stat. 3149.)
HISTORICAL AND REVISION NOTES
Revised
Section
101921 .........

Source (U.S. Code)
16 U.S.C. 5960.

Source (Statutes at Large)
Pub. L. 105–391, title IV,
§ 411, Nov. 13, 1998, 112
Stat. 3514.

Source (U.S. Code)
16 U.S.C. 5962.

Source (Statutes at Large)
Pub. L. 105–391, title IV,
§ 413, Nov. 13, 1998, 112
Stat. 3515.

The words relating to the leasing of buildings and
properties of the United States’’ are omitted as unnecessary.

§ 101923. Recordkeeping requirements
(a) IN GENERAL.—A concessioner and any subconcessioner shall keep such records as the Secretary may prescribe to enable the Secretary to
determine that all terms of a concession contract have been and are being faithfully performed. The Secretary and any authorized representative of the Secretary shall, for the purpose of audit and examination, have access to
those records and to other records of the concessioner or subconcessioner pertinent to the concession contract and all terms and conditions of
the concession contract.
(b) ACCESS TO RECORDS BY COMPTROLLER GENERAL.—The Comptroller General and any authorized representative of the Comptroller General shall, until the expiration of 5 calendar
years after the close of the business year of each
concessioner or subconcessioner, have access to
and the right to examine any pertinent records
described in subsection (a) of the concessioner or
subconcessioner related to the contract involved.
(Pub. L. 113–287, § 3, Dec. 19, 2014, 128 Stat. 3150.)
HISTORICAL AND REVISION NOTES
Revised
Section
101923 .........

§ 101921. Multiple contracts within a System unit

§ 101924

Source (U.S. Code)
16 U.S.C. 5963.

Source (Statutes at Large)
Pub. L. 105–391, title IV,
§ 414, Nov. 13, 1998, 112
Stat. 3515.

In this section, the word ‘‘duly’’ is omitted as unnecessary.
In subsection (a), the words ‘‘and any subconcessioner’’ and ‘‘or subconcessioner’’ are added for clarity.
See 36 CFR 51.98. The word ‘‘records’’ is substituted for
‘‘books, documents, and papers’’ for consistency in the
revised title and with other titles of the United States
Code.
In subsection (b), the words ‘‘books, papers, documents’’ are omitted as included in ‘‘records’’. The
words ‘‘described in subsection (a)’’ are added for clarity.

§ 101924. Promotion of sale of Indian, Alaska Native, Native Samoan, and Native Hawaiian
handicrafts
(a) IN GENERAL.—Promoting the sale of authentic United States Indian, Alaskan Native,
Native Samoan, and Native Hawaiian handicrafts relating to the cultural, historical, and
geographic characteristics of System units is
encouraged, and the Secretary shall ensure that

§ 101925

TITLE 54—NATIONAL PARK SERVICE AND RELATED PROGRAMS

there is a continuing effort to enhance the handicraft trade where it exists and establish the
trade in appropriate areas where the trade does
not exist.
(b) EXEMPTION FROM FRANCHISE FEE.—In furtherance of the purposes of subsection (a), the
revenue derived from the sale of United States
Indian, Alaska Native, Native Samoan, and Native Hawaiian handicrafts shall be exempt from
any franchise fee payments under this subchapter.
(Pub. L. 113–287, § 3, Dec. 19, 2014, 128 Stat. 3150.)
HISTORICAL AND REVISION NOTES
Revised
Section
101924 .........

Source (U.S. Code)
16 U.S.C. 5964.

Source (Statutes at Large)
Pub. L. 105–391, title IV,
§ 416, Nov. 13, 1998, 112
Stat. 3516.

§ 101925. Commercial use authorizations
(a) IN GENERAL.—To the extent specified in
this section, the Secretary, on request, may authorize a private person, corporation, or other
entity to provide services to visitors to System
units through a commercial use authorization.
A commercial use authorization shall not be
considered to be a concession contract under
this subchapter and no other section of this subchapter shall be applicable to a commercial use
authorization except where expressly stated.
(b) CRITERIA FOR ISSUANCE OF COMMERCIAL USE
AUTHORIZATIONS.—
(1) REQUIRED DETERMINATIONS.—The authority of this section may be used only to authorize provision of services that the Secretary determines—
(A) will have minimal impact on resources
and values of a System unit; and
(B) are consistent with the purpose for
which the System unit was established and
with all applicable management plans and
Service policies and regulations.
(2) ELEMENTS OF COMMERCIAL USE AUTHORIZATION.—The Secretary shall—
(A) require payment of a reasonable fee for
issuance of a commercial use authorization,
the fees to remain available without further
appropriation to be used, at a minimum, to
recover associated management and administrative costs;
(B) require that the provision of services
under a commercial use authorization be accomplished in a manner consistent to the
highest practicable degree with the preservation and conservation of System unit resources and values;
(C) take appropriate steps to limit the liability of the United States arising from the
provision of services under a commercial use
authorization;
(D) have no authority under this section to
issue more commercial use authorizations
than are consistent with the preservation
and proper management of System unit resources and values; and
(E) shall establish other conditions for issuance of a commercial use authorization
that the Secretary determines to be appropriate for the protection of visitors, provi-

Page 54

sion of adequate and appropriate visitor
services, and protection and proper management of System unit resources and values.
(c) LIMITATIONS.—Any commercial use authorization shall be limited to—
(1) commercial operations with annual gross
receipts of not more than $25,000 resulting
from services originating and provided solely
within a System unit pursuant to the commercial use authorization;
(2) the incidental use of resources of the System unit by commercial operations that provide services originating and terminating outside the boundaries of the System unit; or
(3)(A) uses by organized children’s camps,
outdoor clubs, and nonprofit institutions (including back country use); and
(B) other uses, as the Secretary determines
to be appropriate.
(d) NONPROFIT INSTITUTIONS.—Nonprofit institutions are not required to obtain commercial
use authorizations unless taxable income is derived by the institution from the authorized use.
(e) PROHIBITION ON CONSTRUCTION.—A commercial use authorization shall not provide for the
construction of any structure, fixture, or improvement on federally-owned land within the
boundaries of a System unit.
(f) DURATION.—The term of any commercial
use authorization shall not exceed 2 years. No
preferential right of renewal or similar provisions for renewal shall be granted by the Secretary.
(g) OTHER CONTRACTS.—A person, corporation,
or other entity seeking or obtaining a commercial use authorization shall not be precluded
from submitting a proposal for concession contracts.
(Pub. L. 113–287, § 3, Dec. 19, 2014, 128 Stat. 3150.)
HISTORICAL AND REVISION NOTES
Revised
Section
101925 .........

Source (U.S. Code)
16 U.S.C. 5966.

Source (Statutes at Large)
Pub. L. 105–391, title IV,
§ 418, Nov. 13, 1998, 112
Stat. 3516.

§ 101926. Regulations
(a) IN GENERAL.—The Secretary shall prescribe
regulations appropriate for the implementation
of this subchapter.
(b) CONTENTS.—The regulations—
(1) shall include appropriate provisions to
ensure that concession services and facilities
to be provided in a System unit are not segmented or otherwise split into separate concession contracts for the purposes of seeking
to reduce anticipated annual gross receipts of
a concession contract below $500,000; and
(2) shall further define the term ‘‘United
States Indian, Alaskan Native, and Native Hawaiian handicrafts’’ for the purposes of this
subchapter.
(Pub. L. 113–287, § 3, Dec. 19, 2014, 128 Stat. 3151.)
HISTORICAL AND REVISION NOTES
Revised
Section
101926 .........

Source (U.S. Code)
16 U.S.C. 5965.

Source (Statutes at Large)
Pub. L. 105–391, title IV,
§ 417, Nov. 13, 1998, 112
Stat. 3516.

Page 55

TITLE 54—NATIONAL PARK SERVICE AND RELATED PROGRAMS

The words ‘‘As soon as practicable after the effective
date of this subchapter’’ are omitted as obsolete.

SUBCHAPTER III—COMMERCIAL SERVICES
AUTHORIZATION
Sec.1

101931.
101932.
101933.
101934.
101935.
101936.
101937.
101938.

Contract authority.
Award of commercial services contracts.
Term of commercial services contracts.
Capital improvements.
Financial management.
Regulations.
Savings provision.
Sunset.
CODIFICATION

The table of sections for subchapter III is set out preceding section 101931 as enacted by Pub. L. 114–289, and
not as part of the chapter analysis preceding section
101901.

§ 101936

1980, 94 Stat. 2371. For complete classification of this
Act to the Code, see Short Title note set out under section 3101 of Title 16, Conservation, and Tables.

§ 101932. Award of commercial services contracts
(a) COMPETITIVE SELECTION PROCESS.—Except
as provided in subsection (c), commercial services contracts shall be awarded by the Secretary
through a competitive selection process.
OF
PROPOSALS.—Before
(b)
SOLICITATION
awarding a new commercial services contract,
the Secretary shall publicly solicit proposals for
the contract, except as provided in subsection
(c). In connection with such solicitation, the
Secretary shall prepare a request for proposals
and shall publish notice of its availability.
(Added Pub. L. 114–289, title VII, § 701, Dec. 16,
2016, 130 Stat. 1493.)

§ 101931. Contract authority

§ 101933. Term of commercial services contracts

(a) GENERAL AUTHORITY.—Notwithstanding
subchapter II, the Secretary may award and administer commercial services contracts (and related professional services contracts) for the operation and expansion of commercial visitor facilities and visitor services programs in System
units. The commercial services contracts that
may be awarded shall be limited to those that
are necessary and appropriate for public use and
enjoyment of the unit of the System in which
they are located, and, that are consistent with
the preservation and conservation of the resources and values of the unit.
(b) ADDITIONAL AUTHORITY.—Contracts may be
awarded under subsection (a) without regard to
Federal laws and regulations governing procurement by Federal agencies, with the exception of
laws and regulations related to Federal government contracts governing working conditions
and wage rates, including the Alaska National
Interest Lands Conservation Act (16 U.S.C. 3101
et seq.), sections 3141–3144, 3146, and 3147 of title
40, United States Code (commonly known as the
‘‘Davis-Bacon Act’’), and any civil rights provisions otherwise applicable thereto.
(c) USE OF COMMERCIAL SERVICES CONTRACTS.—
(1) IN GENERAL.—The Secretary may issue a
commercial services contract under this subchapter when the Secretary determines that
the contract meets the objectives of expanding, modernizing, and improving the condition
of commercial visitor facilities and the services provided to visitors.
(2) EXCEPTIONS.—No contracts may be
awarded under this subchapter—
(A) for the provision of outfitter and guide
services described in section 101913(8); or
(B) to authorize the provision of facilities
or services for which the Secretary has
granted to an existing concessioner a preferential right of renewal as defined in sections 101911 and 101913.

A commercial services contract entered into
pursuant to this title shall be awarded for a
term not to exceed 10 years.

(Added Pub. L. 114–289, title VII, § 701, Dec. 16,
2016, 130 Stat. 1492.)

(Added Pub. L. 114–289, title VII, § 701, Dec. 16,
2016, 130 Stat. 1493.)

REFERENCES IN TEXT
The Alaska National Interest Lands Conservation
Act, referred to in subsec. (b), is Pub. L. 96–487, Dec. 2,
1 Editorially

supplied.

(Added Pub. L. 114–289, title VII, § 701, Dec. 16,
2016, 130 Stat. 1493.)
§ 101934. Capital improvements
A person or entity awarded a contract under
this subchapter shall receive no leasehold surrender interest, as defined in section 101915, in
capital improvements constructed under the
terms of the contract.
(Added Pub. L. 114–289, title VII, § 701, Dec. 16,
2016, 130 Stat. 1493.)
§ 101935. Financial management
(a) REVOLVING FUND.—There is established a
revolving fund that shall be available to the
Secretary without fiscal year limitation for—
(1) expenses necessary for the management,
improvement, enhancement, operation, construction, and maintenance of commercial visitor services and facilities; and
(2) payment of possessory interest and leasehold surrender interest.
(b) COLLECTION OF FUNDS.—
(1) Funds collected by the Secretary pursuant to the contracts awarded under this subchapter shall be credited to the revolving
fund.
(2) The Secretary is authorized to transfer to
the revolving fund, without reimbursement,
any additional funds or revenue in connection
with the functions to be carried out under this
subchapter.
(c) USE OF FUNDS.—Amounts in the revolving
fund shall be used by the Secretary in furtherance of the purposes of this title. No funds from
this account may be used to decrease the availability of services and programs to the public.

§ 101936. Regulations
As soon as practicable after the effective date
of this subchapter, the Secretary shall promulgate regulations appropriate for its implementation.

§ 101937

TITLE 54—NATIONAL PARK SERVICE AND RELATED PROGRAMS

(Added Pub. L. 114–289, title VII, § 701, Dec. 16,
2016, 130 Stat. 1493.)
REFERENCES IN TEXT
The effective date of this subchapter, referred to in
text, probably means the date of enactment of Pub. L.
114–289, which enacted this subchapter and was approved Dec. 16, 2016.

(c) ASSIGNMENT OR TRANSFER.—No contract,
lease, or privilege described in subsection (a) or
(b) that is entered into or granted shall be assigned or transferred by the grantee, lessee, or
licensee without the prior written approval of
the Secretary.
(Pub. L. 113–287, § 3, Dec. 19, 2014, 128 Stat. 3152.)
HISTORICAL AND REVISION NOTES

§ 101937. Savings provision
Nothing in this subchapter shall modify the
terms or conditions of any concessions contracts
awarded under subchapter II or the ability of the
National Park Service to enter into concessions
contracts under the National Park Service Concessions Management Improvement Act of 1998
(title IV of Public Law 105–391) including the use
of leaseholder surrender interest.

Revised
Section
102101 .........

Source (U.S. Code)

Source (Statutes at Large)

16 U.S.C. 3 (last sentence).

Aug. 25, 1916, ch. 408, § 3 (last
sentence), 39 Stat. 535;
Mar. 7, 1928, ch. 137, § 1
(matter relating to section 3 of the Act of August 25, 1916, in 12th undesignated
par.
under
heading
‘‘NATIONAL
PARK
SERVICE’’),
45
Stat. 235; Pub. L. 85–434,
May 29, 1958, 72 Stat. 152;
Pub. L. 105–391, title IV,
§ 415(b)(1), Nov. 13, 1998, 112
Stat. 3515.

(Added Pub. L. 114–289, title VII, § 701, Dec. 16,
2016, 130 Stat. 1493.)
REFERENCES IN TEXT
The National Park Service Concessions Management
Improvement Act of 1998, referred to in text, is title IV
of Pub. L. 105–391, Nov. 13, 1998, 112 Stat. 3503. For complete classification of this Act to the Code, see Short
Title of 1998 Act note set out under section 100101 of
this title and Tables.

§ 101938. Sunset
The authority given to the Secretary under
this subchapter shall expire 7 years after the
date of the enactment of this subchapter.
(Added Pub. L. 114–289, title VII, § 701, Dec. 16,
2016, 130 Stat. 1494.)
REFERENCES IN TEXT
The date of the enactment of this subchapter, referred to in text, is the date of enactment of Pub. L.
114–289, which was approved Dec. 16, 2016.

CHAPTER 1021—PRIVILEGES AND LEASES
Sec.

102101.
102102.

General provisions.
Authority of Secretary to enter into lease for
buildings and associated property.

§ 102101. General provisions
(a) LIMITATION.—
(1) NO LEASE OR GRANT OF A PRIVILEGE THAT
INTERFERES WITH FREE ACCESS.—No natural curiosity, wonder, or object of interest shall be
leased or granted to anyone on such terms as
to interfere with free access by the public to
any System unit.
(2) EXCEPTION FOR GRAZING LIVESTOCK.—The
Secretary, under such regulations and on such
terms as the Secretary may prescribe, may
grant the privilege to graze livestock within a
System unit when, in the Secretary’s judgment, the use is not detrimental to the primary purpose for which the System unit was
created. This paragraph does not apply to Yellowstone National Park.
(b) ADVERTISING AND COMPETITIVE BIDS NOT
REQUIRED.—The Secretary may grant privileges
and enter into leases described in subsection (a),
and enter into related contracts with responsible persons, firms, or corporations, without advertising and without securing competitive bids.

Page 56

In subsection (a)(1), the word ‘‘rented’’ is omitted as
included in ‘‘leases’’.
In subsections (b) and (c), the word ‘‘permit’’ is omitted for consistency because a permit is not mentioned
earlier in the source provision.
In subsection (c), the word ‘‘lessee’’ is substituted for
‘‘permittees’’ for consistency in the section.

§ 102102. Authority of Secretary to enter into
lease for buildings and associated property
(a) IN GENERAL.—To facilitate the administration of the System, the Secretary, under such
terms and conditions as the Secretary may consider advisable, and except as provided in subsection (b) and subject to subsection (c), may
enter into a lease with any person or government entity for the use of buildings and associated property administered by the Secretary as
part of the System.
(b) PROHIBITED ACTIVITIES.—The Secretary
may not use a lease under subsection (a) to authorize the lessee to engage in activities that
are subject to authorization by the Secretary
through a concession contract, commercial use
authorization, or similar instrument.
(c) USE.—Buildings and associated property
leased under subsection (a)—
(1) shall be used for an activity that is consistent with the purposes established by law
for the System unit in which the building is
located;
(2) shall not result in degradation of the purposes and values of the System unit; and
(3) shall be compatible with Service programs.
(d) RENTAL AMOUNTS.—
(1) IN GENERAL.—With respect to a lease
under subsection (a)—
(A) payment of fair market value rental
shall be required; and
(B) section 1302 of title 40 shall not apply.
(2) ADJUSTMENT.—The Secretary may adjust
the rental amount as appropriate to take into
account any amounts to be expended by the
lessee for preservation, maintenance, restoration, improvement, or repair and related expenses.
(e) SPECIAL ACCOUNT.—