[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 2331 Reported in Senate (RS)]






                                                       Calendar No. 926
106th CONGRESS
  2d Session
                                S. 2331

                          [Report No. 106-477]

 To direct the Secretary of the Interior to recalculate the franchise 
 fee owed by Fort Sumter Tours, Inc., a concessioner providing service 
           to Fort Sumter National Monument, South Carolina.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 30, 2000

 Mr. Hollings introduced the following bill; which was read twice and 
       referred to the Committee on Energy and Natural Resources

            October 3 (legislative day, September 22), 2000

 Reported by Mr. Murkowski, with an amendment and an amendment to the 
                                 title
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 A BILL


 
 To direct the Secretary of the Interior to recalculate the franchise 
 fee owed by Fort Sumter Tours, Inc., a concessioner providing service 
           to Fort Sumter National Monument, South Carolina.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

<DELETED>SECTION 1. RECALCULATION OF FRANCHISE FEE.</DELETED>

<DELETED>    (a) Definitions.--In this section:</DELETED>
        <DELETED>    (1) Franchisee.--The term ``franchisee'' means 
        Fort Sumter Tours, Inc., a concessioner providing service to 
        Fort Sumter National Monument, South Carolina.</DELETED>
        <DELETED>    (2) Secretary.--The term ``Secretary'' means the 
        Secretary of the Interior.</DELETED>
<DELETED>    (b) Recalculation of Franchise Fee.--Not later than 30 
days after the date of enactment of this Act, the Secretary shall--
</DELETED>
        <DELETED>    (1) recalculate the amount (if any) of the 
        franchise fee owed by the franchisee; and</DELETED>
        <DELETED>    (2) notify the franchisee of the recalculated 
        amount.</DELETED>
<DELETED>    (c) Arbitration.--</DELETED>
        <DELETED>    (1) In general.--If the amount of the franchise 
        fee as recalculated under subsection (a) is not acceptable to 
        the franchisee--</DELETED>
                <DELETED>    (A) the franchisee, not later than 5 days 
                after receipt of notification under subsection (b)(2), 
                shall so notify the Secretary; and</DELETED>
                <DELETED>    (B) the amount of the franchise fee owed 
                shall be determined through binding arbitration that 
                provides for a trial-type hearing that--</DELETED>
                        <DELETED>    (i) includes the opportunity to 
                        call and cross-examine witnesses; and</DELETED>
                        <DELETED>    (ii) is subject to supervision by 
                        the United States District Court for the 
                        District of Columbia in accordance with the 
                        title 9, United States Code.</DELETED>
        <DELETED>    (2) Selection of arbitrator or arbitration 
        panel.--</DELETED>
                <DELETED>    (A) Agreement on arbitrator.--For a period 
                of not more than 30 days after the franchisee gives 
                notification under paragraph (1)(A), the Secretary and 
                the franchisee shall attempt to agree on the selection 
                of an arbitrator to conduct the arbitration.</DELETED>
                <DELETED>    (B) Panel.--If at any time the Secretary 
                or the franchisee declares that the parties are unable 
                to agree on an arbitrator--</DELETED>
                        <DELETED>    (i) the Secretary and the 
                        franchisee shall each select an 
                        arbitrator;</DELETED>
                        <DELETED>    (ii) not later than 10 days after 
                        2 arbitrators are selected under clause (i), 
                        the 2 arbitrators shall select a third 
                        arbitrator; and</DELETED>
                        <DELETED>    (iii) the 3 arbitrators shall 
                        conduct the arbitration.</DELETED>
        <DELETED>    (3) Commencement and completion.--An arbitration 
        proceeding under paragraph (1)--</DELETED>
                <DELETED>    (A) shall commence not later than 30 days 
                after the date on which an arbitrator or arbitration 
                panel is selected under paragraph (2); and</DELETED>
                <DELETED>    (B) shall be completed with a decision 
                rendered not later than 240 days after that 
                date.</DELETED>
        <DELETED>    (4) Applicable law.--</DELETED>
                <DELETED>    (A) Relevant time period.--The law 
                applicable to the recalculation of the franchise fee 
                under this subsection shall be the law applicable to 
                franchise fee determinations in effect at the beginning 
                of the period for which the franchise fee is 
                payable.</DELETED>
                <DELETED>    (B) Previous decisions.--No previous 
                judicial decision regarding the franchise fee dispute 
                that is the subject of arbitration under this 
                subsection may be introduced in evidence or considered 
                by the arbitrator or arbitration panel for any 
                purpose.</DELETED>
        <DELETED>    (5) Fees and costs.--If the franchisee is the 
        prevailing party in binding arbitration, the arbitrator or 
        arbitration panel shall award the franchisee reasonable 
        attorney's fees and costs for all proceedings involving the 
        disputed franchise fee consistent with--</DELETED>
                <DELETED>    (A) section 504 of title 5, United States 
                Code; and</DELETED>
                <DELETED>    (B) section 2412 of title 28, United 
                States Code.</DELETED>
<DELETED>    (d) Bids and Proposals.--Until such date as any 
arbitration under this Act is completed and is no longer subject to 
appeal, the Secretary--</DELETED>
        <DELETED>    (1) shall not solicit or accept a bid or proposal 
        for any contract for passenger service to Fort Sumter National 
        Monument; and</DELETED>
        <DELETED>    (2) shall offer to the franchisee annual 
        extensions of the concessions contract in effect on the date of 
        enactment of this Act.</DELETED>

SECTION 1. ARBITRATION REQUIREMENT.

    The Secretary of the Interior (in this Act referred to as the 
``Secretary'') shall, upon the request of Fort Sumter Tours, Inc. (in 
this Act referred to as the ``Concessioner''), agree to binding 
arbitration to determine the franchise fee payable under the contract 
executed on June 13, 1986, by the Concessioner and the National Park 
Service, under which the Concessioner provides passenger boat service 
to Fort Sumter National Monument in Charleston Harbor, South Carolina 
(in this Act referred to as ``the Contract'').

SEC. 2. APPOINTMENT OF THE ARBITRATOR.

    (a) Mutual Agreement.--Not later than 90 days after the date of 
enactment of this Act, The Secretary and the Concessioner shall jointly 
select a single arbitrator to conduct the arbitration under this Act.
    (b) Failure To Agree.--If the Secretary and the concessioner are 
unable to agree on the selection of a single arbitrator within 90 days 
after the date of enactment of this Act, within 30 days thereafter the 
Secretary and the Concessioner shall each select an arbitrator, the two 
arbitrators selected by the Secretary and the Concessioner shall 
jointly select a third arbitrator, and the three arbitrators shall 
jointly conduct the arbitration.
    (c) Qualifications.--Any arbitrator selected under either 
subsection (a) or subsection (b) shall be a neutral who meets the 
criteria of section 573 of title 5, United States Code.
    (d) Payment of Expenses.--The Secretary and the Concessioner shall 
share equally the expenses of the arbitration.
    (e) Definition.--As used in this Act, the term ``arbitrator'' 
includes either a single arbitrator selected under subsection (a) or a 
three-member panel of arbitrators selected under (b).

SEC. 3. SCOPE OF THE ARBITRATION.

    (a) Sole Issue To Be Decided.--The arbitrator shall determine--
            (1) the appropriate amount of the franchise fee under the 
        Contract for the period from June 13, 1991, through December 
        31, 2000, in accordance with the terms of the Contract; and
            (2) any interest or penalties on the amount owed under 
        paragraph (1).
    (b) De Novo Decision.--The arbitrator shall not be bound by any 
prior determination of the appropriate amount of the fee by the 
Secretary.
    (C) Basis for Decision.--The arbitrator shall determine the 
appropriate amount of the fee based upon the law in effect on the 
effective date of the Contract and the terms of section 9 of the 
Contract.

SEC. 4. EFFECT OF DECISION.

    (a) Retroactive Effect.--The amount of the fee determined by the 
arbitrator under section 3(a) shall be retroactive to June 13, 1991.
    (b) No Further Review.--Notwithstanding subchapter IV of title 5, 
United States Code (commonly known as the Administrative Dispute 
Resolution Act), the decision of the arbitrator shall be final and 
conclusive upon the Secretary and the Concessioner and shall not be 
subject to judicial review.

SEC. 5. GENERAL AUTHORITY.

    Except to the extent inconsistent with this Act, the arbitration 
under this Act shall be conducted in accordance with subchapter IV of 
title 5, United States Code.

SEC. 6. ENFORCEMENT.

    A party aggrieved by the alleged failure, neglect, or refusal of 
another to arbitrate under this Act, or by any unreasonable delay in 
the appointment of the arbitrator or the conduct of the arbitration, 
may petition the United States District Court for the District of South 
Carolina or the United States District Court for the District of 
Columbia for an order directing that the arbitration proceed in the 
manner provided by this Act.
            Amend the title to read: ``A bill to require the Secretary 
        of the Interior to submit the dispute over the franchise fee 
        owed by Fort Sumter Tours, Inc. to binding arbitration.''.
                                                       Calendar No. 926

106th CONGRESS

  2d Session

                                S. 2331

                          [Report No. 106-477]

_______________________________________________________________________

                                 A BILL

 To direct the Secretary of the Interior to recalculate the franchise 
 fee owed by Fort Sumter Tours, Inc., a concessioner providing service 
           to Fort Sumter National Monument, South Carolina.

_______________________________________________________________________

            October 3 (legislative day, September 22), 2000

        Reported with an amendment and an amendment to the title