US Code
SUBCHAPTER II— COMMERCIAL VISITOR SERVICES
§ 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 Capital
Improvements.—
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 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 November13, 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 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.
(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.