54 U.S.C. § 101917 — Franchise fees

Page 53 TITLE 54—NATIONAL PARK SERVICE AND RELATED PROGRAMS § 101917 HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 101915(a) ..... 16 U.S.C. 5954(e). Pub. L. 105–391, title IV, § 405(a) through (e), Nov. 13, 1998, 112 Stat. 3508. 101915(b) ..... 16 U.S.C. 5954(a). 101915(c)(1) through (3). 16 U.S.C. 5954(b). 101915(c)(4) 16 U.S.C. 5954 note. Pub. L. 110–161, div. F, title I (1st paragraph under heading ‘‘ADMINISTRATIVE PROVISIONS’’ under head- ing ‘‘NATIONAL PARK SERVICE’’), Dec. 26, 2007, 121 Stat. 2107. 101915(d), (e). 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 No- vember 13, 1998’’ are omitted as obsolete. In subsection (c)(4), the words ‘‘For fiscal years 2008 and hereafter’’ are omitted as obsolete. Editorial Notes 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 of chapter 1 of Title 16, Conservation, and amended section 462 of Title 16, prior to being repealed by Pub.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, sub- ject 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 sub- ject to approval by the Secretary. The ap- proval process utilized by the Secretary shall be as prompt and as unburdensome to the con- cessioner 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 reason- able and appropriate. Unless otherwise pro- vided in the concession contract, the reason- ableness and appropriateness of rates and charges shall be determined primarily by com- parison with those rates and charges for facili- ties, goods, and services of comparable char- acter under similar conditions, with due con- sideration 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 ma- terials. (F) Type of patronage. (2) RATES AND CHARGES NOT TO EXCEED MAR- KET RATES AND CHARGES.—Rates and charges 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 rec- ommendations from the Advisory Board regard- ing concessioner rates and charges to the public, the Secretary shall implement the recommenda- tions 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 Source (U.S. Code) Source (Statutes at Large) 101916 ......... 16 U.S.C. 5955. Pub. L. 105–391, title IV, § 406, Nov. 13, 1998, 112 Stat. 3510. § 101917. Franchise fees (a) IN GENERAL.—A concession contract shall provide for payment to the Federal Government of a franchise fee or other monetary consider- ation as determined by the Secretary, on consid- eration of the probable value to the concessioner of the privileges granted by the particular con- tract involved. Probable value shall be based on a reasonable opportunity for net profit in rela- tion to capital invested and the obligations of the concession contract. Consideration of rev- enue to the United States shall be subordinate to the objectives of protecting and preserving System units and of providing necessary and ap- propriate services for visitors at reasonable rates. (b) PROVISIONS TO BE SPECIFIED IN CONTRACT.— The amount of the franchise fee or other mone- tary 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 unantici- pated changes from the conditions anticipated as of the effective date of the concession con- tract. 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 pro- vide 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 ac- count 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. Each subaccount shall be credited with 80 per- cent of the franchise fees (and other monetary consideration) collected at a single System Page 54 TITLE 54—NATIONAL PARK SERVICE AND RELATED PROGRAMS § 101918 unit under concession contracts. The funds credited to the subaccount for a System unit shall be available for expenditure by the Sec- retary, 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. (3) REDUCTION.—The Secretary may reduce the percentage allocation otherwise applicable under paragraph (2) to a unit or area of the National Park Service for a fiscal year if the Secretary determines that the revenues col- lected at the unit or area exceed the reason- able needs of the unit or area for which ex- penditures may be made for that fiscal year. In no event may a percentage allocation be re- duced below 60 percent. (Pub. L. 113–287, § 3, Dec. 19, 2014, 128 Stat. 3146; Pub. L. 118–42, div. E, title I, § 121, Mar. 9, 2024, 138 Stat. 249.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 101917 ......... 16 U.S.C. 5956. Pub. L. 105–391, title IV, § 407, Nov. 13, 1998, 112 Stat. 3511. Editorial Notes AMENDMENTS 2024—Subsec. (c)(3). Pub. L. 118–42 added par. (3). § 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 con- veyed 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 enti- ty 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 preser- vation of the resources of the System unit; or (B) the provision of necessary and appro- priate 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 facili- ties and services provided by the conces- sioner; or (C) result in a need for increased rates and charges to the public to maintain the qual- ity of the facilities and services. (c) MODIFICATION OR RENEGOTIATION OF TERMS.—The terms and conditions of any con- cession contract under this section shall not be subject to modification or open to renegotiation by the Secretary because of a transfer or con- veyance 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.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 101918 ......... 16 U.S.C. 5957. 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 Concessions Management Advisory Board (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 en- sure that services and facilities provided by concessioners— (i) are necessary and appropriate; (ii) meet acceptable standards at reason- able 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 pro- grams 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 pri- vate sector to conduct appropriate elements of concession management. (B) Ways to make the review or approval of concessioner rates and charges to the pub- lic 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 Sen- ate. (c) ADVISORY BOARD MEMBERSHIP.—Members of the Advisory Board shall be appointed on a stag- gered 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 com- prised of not more than 7 individuals appointed