54 U.S.C. § 101915 — Protection of concessioner investment

(a) Definitions. Two terms matter here. (1) A "capital improvement" is a structure, fixture, or piece of equipment that can't be removed, which a concessioner provides under its contract, on federal land inside a System unit. (2) "Consumer Price Index" means the Bureau of Labor Statistics' "Consumer Price Index—All Urban Consumers," or, if that stops being published, another regularly published cost-of-living index that's a close substitute. (b) Leasehold Surrender Interest in Capital Improvements. A concessioner that builds a capital improvement on federal land under its contract gets what's called a "leasehold surrender interest" in it, governed by seven rules. (1) This interest is simply the right to be paid for the improvement, up to the value of that interest — nothing more. (2) The concessioner can pledge this interest as security to help finance the improvement or to buy a concession contract, as long as the Secretary approves. (3) If the concession contract is transferred to someone else, this interest transfers along with it; the concessioner may also give up or waive the interest voluntarily. (4) The interest doesn't disappear just because the contract expires or ends, and the government can't take it for public use without paying just compensation. (5) The interest's value starts at the improvement's original construction cost. That amount then rises or falls by the same percentage the Consumer Price Index has risen or fallen, measured from when the concessioner made the investment to when the value gets paid out. Finally, depreciation is subtracted, based on the improvement's condition and expected remaining useful life compared to a brand-new version of the same thing. (6) For big new contracts — ones the Secretary expects will have a leasehold surrender interest over $10,000,000 — the Secretary can instead calculate value by reducing it in equal yearly steps, matching the straight-line depreciation schedule that federal tax law used as of November 12, 1998, or by using another formula that fits this subchapter's goals. The Secretary can only use that alternative formula after carefully reviewing the specific contract's finances — including publishing notice in the Federal Register and taking public comment — and deciding the alternative is truly needed to give the government a fair return and to keep the contract competitive by giving bidders a real chance to profit. If nobody submits a responsive bid using the alternative formula, the Secretary must resolicit using the standard valuation method instead. (7) If a concessioner later improves an existing capital improvement it already holds an interest in, the cost of that new work gets added to the interest's current value. (c) Special Rule for Possessory Interest Existing Before November 13, 1998. This subsection covers older contracts. (1) A concessioner that held a "possessory interest" — as that term was defined under the 1965 National Park Service Concessions Policy Act, as it stood on November 12, 1998 — under a contract signed before November 13, 1998, is entitled to compensation for its possessory-interest improvements when the contract expires or ends, in the amount and manner the contract itself describes. If the contract doesn't describe it, compensation follows the law as it existed on November 12, 1998. (2) If that same concessioner is later awarded a new contract to replace the old one, it doesn't get paid directly. Instead, it gets a leasehold surrender interest in its old possessory-interest improvements under the new contract, and the value of the old possessory interest — as of when the old contract ended — becomes the new interest's starting value, instead of using construction cost. Any dispute over that value goes to binding arbitration. (3) If a different, new concessioner wins the contract and has to pay the outgoing concessioner for the possessory interest in existing improvements, that new concessioner then holds a leasehold surrender interest in those improvements, again starting at the value of the old possessory interest rather than construction cost. (4) If the Secretary or either party to a value-determination proceeding under a pre-November 13, 1998 contract believes the decision got the contract or the underlying law wrong, they can ask, within 180 days of the decision, for a fresh ("de novo") review by the United States Court of Federal Claims. That court can affirm, vacate, modify, or correct the decision. (d) Transition to Successor Concessioner. When a contract signed after November 13, 1998 expires or ends, the outgoing concessioner is entitled, under the contract's terms, to be paid — by the United States or by the next concessioner — the value of its leasehold surrender interest in any capital improvement, as of that date. The new, successor concessioner then holds its own leasehold surrender interest in that improvement under its new contract. Its interest's starting value, instead of being construction cost, equals whatever the new concessioner had to pay the old one for the old interest. (e) Title to Improvements. No matter who paid for it, title to any capital improvement a concessioner builds on federal land in a System unit belongs to the United States.