[Congressional Record Volume 142, Number 36 (Friday, March 15, 1996)]
[Senate]
[Pages S2192-S2198]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. HATCH:
S. 1619. A bill to amend the provisions of title 17, United States
Code, to provide for an exemption of copyright infringement for the
performance of nondramatic musical works in small commercial
establishments, and for other purposes; to the Committee on the
Judiciary.
THE MUSIC LICENSING REFORM ACT OF 1996
Mr. HATCH. Mr. President, today I am introducing the Music Licensing
Reform Act of 1996: First, to clarify the ``home-style'' exemption
provided by the Copyright Act for the public performance of nondramatic
musical works; second, to regularize the commercial relations between
the performing rights societies, which license such public
performances, and their licensees, who are the proprietors of eating,
drinking, and retail establishments, and third, to improve in general
the oversight of the licensing practices of the two largest performing
rights societies, the American Society of Composers, Authors, and
Publishers [ASCAP] and Broadcast Music, Inc. [BMI].
Music licensing has been a matter of discussion for many years. There
are strongly held views among all of those involved. I am committed to
trying to resolve this matter, and this bill is a good-faith effort to
do so. It is my hope that it can serve as a basis for further
discussion.
Commercial establishments, such as restaurants, bars, and retail
stores, make money off of the public performance of musical works,
whether it be from live performances, from sound recordings, or from
radio and television. Commercial establishments play music or turn on
radio and TV in order to make the eating, drinking, or shopping
experience more pleasant. The ubiquity of these kinds of entertainment
itself proves that businesses believe that it increases patronage.
Recognizing that commercial establishments make money off of the
creative output of songwriters, the Copyright Act of 1976 provided
songwriters with the exclusive right of public performance, so that
creators might share in the added value that their product creates. In
doing so, the Copyright Act carries out the philosophy of the copyright
clause of the Constitution, which sees economic reward as an important
incentive to artistic creation.
Mr. President, the Constitution was right. In 1993, the core
copyright industries contributed approximately $238.6 billion to the
U.S. economy, or 3.74 percent of the total GDP. These same core
copyright industries contribute more to the U.S. economy and employ
more people than any single manufacturing sector, and the growth rate
of these industries continues to outpace the growth of the economy as a
whole by a 2-to-1 ratio.
With domestic sales topping $10 billion each year and annual foreign
sales totaling over $12 billion, the music industry by itself accounts
for a huge percentage of the American economy, and its popularity
abroad provides a healthy component of the U.S. balance of trade. It is
really not an exaggeration to say that American music dominates the
globe. In fact, it is estimated that U.S. recorded music accounts for
some 60 percent of the world market. Indeed, the United States is
second to none in musical creativity. The prosperity of the music
industry and the creative output of American composers and songwriters
must be encouraged.
At the same time, Mr. President, the Copyright Act recognizes that
obtaining and paying for a license to play music should not be overly
burdensome. Some of the burden of obtaining such a license is lessened
by the performing rights societies, such as ASCAP, BMI, and SESAC. It
would be intolerable for a restaurant, bar or store to monitor all the
music that it performs and then search out the individual songwriter,
composer, or publisher who owns the copyright in the music. Instead, a
proprietor can go to the performing rights societies and purchase a
blanket license and not worry about what music it plays, since ASCAP,
BMI, and SESAC account for virtually all of the music that is normally
played in the United States.
exemption for small commercial establishments
The average cost to restaurants and retail establishments of a
blanket license from ASCAP for all public performances, whether by
radio and TV or live, is $575 per year. BMI charges on the average less
than $300 per year for eating and drinking establishments for public
performance by radio and TV, and its retail establishment license for
these performances ranges from $60 to $480 per year. These are not
large sums of money, but they still could be burdensome for some small
commercial establishments. So the Copyright Act also provides for an
exemption, freeing some proprietors from any obligation to compensate
songwriters for the use of their music. This exemption is found in
section 110(5) of the Copyright Act and it effectively applies to
establishments that turn on radio and TV for their customers'
enjoyment. It is known as the ``homestyle'' exemption, because it
exempts ``the public reception of the transmission on a single
receiving apparatus of a kind commonly used in private homes.''
Congress felt--and rightly so--that small commercial establishments
that turned on ordinary radio and TV sets would have a de minimis
impact on the incentive to create that music licensing fees encourage.
Unfortunately, a certain ambiguity was introduced into the exemption
by the language of the House and conference reports of the Copyright
Act of 1976, and this ambiguity has been exacerbated by the courts.
Although the language of 110(5) only mentions sophistication of
equipment, the courts
[[Page S2193]]
have also considered such factors as the size of the establishment, and
ability to pay for a license.
Mr. President, the time has come to clarify the exemption regarding
nondramatic musical works so that proprietors and performing rights
societies can determine more precisely whether an establishment is
exempt or not without having to engage in costly litigation.
My bill does this by exempting ``small commercial establishment[s].''
This change simply recognizes the existing state of the law. In effect,
the courts have looked at a host of relevant factors in order to decide
whether an establishment should have the benefit of the exemption. This
new bill directs the Register of Copyrights to define ``small
commercial establishment'' by regulation, and provides guidance by
listing the factors that the courts have considered, as well as other
factors that are relevant to the determination.
The register is not confined to these factors, however. In our
rapidly changing technological environment, the expertise of the
Copyright Office should not be hampered. The sound and video equipment
that are common today may be obsolete in the not too distant future.
The Copyright Office, unlike Congress, will be able to respond to these
changes in the years ahead more quickly, with greater expertise, and
with far less cost by engaging in other rule-making proceedings. If
Congress legislates specific equipment and area requirements, as some
have suggested, it will have to revisit this issue time and time again.
Changing the language of 110(5) from ``homestyle'' equipment to the
more general ``small commercial establishment'' may result in slightly
expanding the exemption. The Copyright Office, therefore, must take
care that it does not unduly upset the balance between the creative
incentive on the one hand and concern for the burden on small
businesses on the other.
Furthermore, the Copyright Office must bear in mind our international
obligations, especially the Berne Convention. We cannot very well
insist that our musical works be protected outside the United States if
we cut too deeply into the protection that musical works enjoy within
our borders.
Both the Register of Copyrights and the Commissioner of Patents and
Trademarks have written to me that another bill dealing with the
exemption, S. 1137, introduced by Senators Thomas and Brown, would
violate the U.S. obligations under the Berne Convention. The bill that
I am introducing today prevents this from happening by specifically
prohibiting the Copyright Office from expanding the scope of the
exemption beyond that permitted under the international treaty
obligations of the United States.
commercial relations between proprietors and performing rights
societies
Mr. President, this legislation addresses two areas of concern in the
commercial relations between the proprietors of eating, drinking, and
retail establishments who must acquire a license publicly to perform
musical works and the performing rights societies who grant such
licenses as agents for composers, songwriters, and publishers.
First, in response to complaints from proprietors that the performing
rights societies do not readily disclose information about their
licensing fees and in response to complaints from the performing rights
societies that proprietors do not readily disclose factual information
about their establishments that is essential in charging them the
appropriate fee, this bill directs the Register of Copyrights to
promulgate regulations to establish a code of conduct, applicable to
both sides, to govern their licensing negotiations and practices.
The Copyright Office is in a much better position than Congress is to
study the business practices that prevail in order to identify
improvements that would make these practices fairer and more efficient.
The Copyright Office is also in a better position to modify these
regulations as times change.
Second, my legislation directs the Copyright Office to promulgate
regulations to ensure that a performing rights society provides
reasonable access to its repertoire of songs and other musical
compositions. The principle behind this part of the bill is easy to
understand: If a person is going to be asked to pay a performing rights
society in order to perform a work publicly, the payor should be able
easily to verify whether the work is included in the society's
repertoire. A buyer, after all, doesn't want to pay for goods that the
seller has no right to sell.
Complications arise, however, in determining what is reasonable
access. Both ASCAP and BMI, for example, have already made their
repertoires available on line. Is this sufficient to meet the needs of
their licensees or is some more conventional means also called for?
Since the copyright owners of musical compositions can cancel their
agency contracts with the performing rights societies, how up-to-date
must the repertoire be? What happens when a song has two authors, each
of which is represented by a different society?
Finally, what information needs to be supplied? Since almost all
licenses are blanket licenses, giving the licensee the right to play
all music in a society's repertoire, how important is detailed
information on individual compositions? (Indeed, most persons engaged
in the business of publicly performing copyrighted music routinely buy
blanket licenses from ASCAP, BMI, and SESAC, thereby assuring that
virtually all copyrighted music is covered.) It would be unwise to
burden the performing rights societies with expensive obligations to
provide information that is really not necessary.
Clearly, Mr. President, this problem needs the investigative tools
and fine-tuning that Congress is ill-equipped to provide. That is why
the Register of Copyrights needs to examine the problem and provide
clear and up-to-date regulations, after input from the relevant
parties.
general oversight of the licensing practices of ascap and bmi
As I have already pointed out, Mr. President, a blanket license
purchased from ASCAP and BMI will give the licensee the right publicly
to perform virtually all the most popular music in the United States.
For proprietors of eating, drinking, and retail establishments who play
radio and TV for their customers, this is the easiest and most cost-
effective way to go. This logic also applies to radio and TV
broadcasters, who publicly perform countless musical works during their
program days.
There are, however, other businesses for whom the blanket license is
not as attractive. Religious broadcasters, for example, may play music
for a few, select programs, while the rest of their programming is
devoted to talk. For these and other broadcasters similarly situated, a
per program license seems more attractive.
Now, a per program license is available from ASCAP and BMI; in fact,
the antitrust consent decree under which ASCAP and BMI operate requires
that they offer a per program license. The religious broadcasters,
however, are dissatisfied with the price of the license, which, in some
instances, costs more than a blanket license. ASCAP argues, however,
that the administrative costs of the per program license are higher
because it has to monitor the broadcasters to make sure that its music
is used only for licensed programs.
The religious broadcasters would have Congress determine a pricing
formula for the per program license and put it in the Copyright Act, as
currently provided in S. 1137. But arriving at a formula requires a
study of the pricing mechanisms and an inquiry into all the factors
that go into them. Again, this is something that Congress is ill-
equipped to do. Moreover, it would simply spark demands by other music
licensees to do the same for them.
Fortunately, a forum for dealing with this issue already exists in
the Rate Court of the U.S. District Court for the Southern District of
New York. The Rate Court was set up pursuant to an antitrust consent
decree that both ASCAP and BMI are party to, stemming from law suits
against these performing rights societies that were brought many years
ago.
Indeed, the religious broadcasters are currently arguing the per
program license pricing issue before the Rate Court in a suit brought
against ASCAP. A decision is expected this year. A previous case
involving ASCAP and the TV broadcasters over the same issue resulted in
a decision favorable to the broadcasters. The religious broadcasters,
therefore, have a reasonable
[[Page S2194]]
expectation that their complaint will be decided in their favor and in
the near future.
Mr. President, I question the wisdom of having Congress establish a
pricing formula for per program licenses for radio broadcasters.
What Congress should be doing is looking at the overall structure and
efficient functioning of the consent decree to make sure that it is
working and that it is accessible to those, such as the religious
broadcasters, who do not have the resources to engage in expensive,
protracted litigation. This is precisely what the bill that I am
introducing today proposes to do. It directs the Copyright Office to
study the administration of the consent decree so that adjudication
under the consent decree may be less time-consuming and more cost-
effective, especially for parties with fewer resources. It may very
well be, for example, that a system of local or regional arbitration
may be more efficient and not too burdensome for the performing rights
societies. The Judiciary Committee will consider very seriously the
findings and recommendations of the Copyright Office.
Although I disagree with S. 1137, I want to thank my distinguished
colleague from Colorado, Senator Hank Brown, for his indefatigable
attention to music licensing issues. Senator Brown spent several hours
trying to work out a compromise that would be acceptable to the
proprietors and religious broadcasters on the one hand and to the
performing rights societies and the hundreds of composers and
songwriters that they represent on the other. I also want to thank my
distinguished colleague from South Carolina, Senator Strom Thurmond,
who brought the concerns of the religious broadcasters to my attention.
I urge them and all others interested in this issue to support the
compromise legislation that I have introduced today, the Music
Licensing Reform Act of 1996.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1619
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Music Licensing Reform Act
of 1996''.
SEC. 2. EXEMPTION OF COPYRIGHT INFRINGEMENT FOR PERFORMANCE
OF NONDRAMATIC MUSICAL WORKS IN SMALL
COMMERCIAL ESTABLISHMENTS.
(a) In General.--Section 110 of title 17, United States
Code, is amended--
(1) in the matter preceding paragraph (1) by inserting
``(a)'' before ``Notwithstanding'';
(2) by amending paragraph (5) to read as follows:
``(5)(A) communication of a transmission embodying a
performance or display of a work (except a nondramatic
musical work) by the public reception of the transmission on
a single receiving apparatus of a kind commonly used in
private homes, unless--
``(i) a direct charge is made to see or hear the
transmission; or
``(ii) the transmission thus received is further
transmitted to the public; or
``(B) communication of a transmission embodying a
performance or display of a nondramatic musical work by the
public reception of the transmission on the premises of a
small commercial establishment, unless--
``(i) a direct charge is made to see or hear the
transmission; or
``(ii) the transmission thus received is further
transmitted to the public;''; and
(3) by adding at the end thereof the following new
subsection:
``(b)(1) For purposes of subsection (a)(5)(B), the Register
of Copyrights shall define the term `small commercial
establishment' by regulation, which shall include specific,
verifiable criteria. Such criteria may relate to--
``(A) the area of the establishment, including whether the
establishment is of sufficient size to justify, as a
practical matter, a subscription to a commercial background
music service;
``(B) the kind, number, and location of equipment used;
``(C) the gross revenue of the establishment;
``(D) the number of employees; and
``(E) other relevant factors.
``(2) The definition of small commercial establishment
shall not result in an exemption to the right of public
performance or to the right of public display the scope of
which exceeds that permitted under the international treaty
obligations of the United States.''.
(b) Technical and Conforming Amendments.--Chapter 1 of
title 17, United States Code, is amended--
(1) in section 111(a)(2) by striking out ``section 110''
and inserting in lieu thereof ``section 110(a)'';
(2) in section 112(d) by striking out ``section 110(8)''
each place such term appears and inserting in each such place
``section 110(a)(8)''; and
(3) in section 118(d)(3) by striking out ``section 110''
and inserting in lieu thereof ``section 110(a)''.
SEC. 3. NEGOTIATIONS AND LICENSING BETWEEN PROPRIETORS AND
PERFORMING RIGHTS SOCIETIES.
(a) In General.--The provisions of title 17, United States
Code, are amended by adding after chapter 11 the following
new chapter:
``CHAPTER 12--NEGOTIATIONS AND LICENSING BETWEEN PROPRIETORS AND
PERFORMING RIGHTS SOCIETIES
``Sec.
``1201. Definitions.
``1202. Code of conduct.
``1203. Access to repertoire.
``Sec. 1201. Definitions
``For purposes of this chapter, the term--
``(1) `performing rights society' means an association,
corporation, or other entity that licenses the public
performance of nondramatic musical works on behalf of
copyright owners of such works, such as the American Society
of Composers, Authors and Publishers (ASCAP), Broadcast
Music, Inc. (BMI), and SESAC, Inc.; and
``(2) `proprietor'--
``(A) means the owner of a retail establishment,
restaurant, inn, bar, tavern, or any other similar place of
business in which--
``(i) the public may assemble; and
``(ii) nondramatic musical works may be publicly performed;
and
``(B) shall not include any owner or operator of--
``(i) a radio or television station licensed by the Federal
Communications Commission;
``(ii) a cable system or satellite carrier;
``(iii) a cable or satellite carrier service or programmer;
``(iv) a commercial subscription music service; or
``(v) any other transmission service.
``Sec. 1202. Code of conduct
``(a) In General.--The Register of Copyrights shall
promulgate regulations to establish a code of conduct for the
licensing negotiations and practices between a proprietor and
a performing rights society. Such regulations shall include
reasonable disclosure requirements for proprietors and
performing rights societies and the content and form of
licensing agreements.
``(b) General Enforcement.--(1) A proprietor or performing
rights society may file a civil action in any United States
district court of appropriate jurisdiction to enforce the
code of conduct established under this section.
``(2) For purposes of an action filed under this
subsection--
``(A) all parties shall be deemed to have exhausted all
administrative remedies; and
``(B) the court shall conduct a trial de novo without an
agency record.
``(c) Enforcement in Actions Involving Licensing
Agreements.--(1) This subsection applies to any civil action
filed under this section to enforce the code of conduct in
which a proprietor and a performing rights society have a
licensing agreement.
``(2) If a proprietor violates a provision of the code of
conduct, the court shall assess a civil fine against the
proprietor, payable to the performing rights society, equal
to the cost of the applicable annual license fee.
``(3) If a performing rights society violates a provision
of the code of conduct, the court shall order the society to
grant a license to the proprietor for the nondramatic public
performance of musical works in the repertoire of the society
at no fee for a period of 1 year beginning on the date on
which judgment is entered.
``Sec. 1203. Access to repertoire
``(a) In General.--(1) The Register of Copyrights shall
promulgate regulations to ensure that a performing rights
society shall provide reasonable access to its repertoire so
that a person engaged in the public performance of a
nondramatic musical work may determine with reasonable
certainty whether the public performance of a particular work
may be licensed by a particular licensor.
``(2) Reasonable access to repertoire under this section
shall not include access to works rarely publicly performed.
``(b) Enforcement.--(1) A proprietor or performing rights
society may file a civil action in any United States district
court of appropriate jurisdiction to enforce the regulations
promulgated under this section.
``(2) For purposes of an action filed under this section--
``(A) all parties shall be deemed to have exhausted all
administrative remedies; and
``(B) the court shall conduct a trial de novo without an
agency record.
``(c) Restrictions on Performing Rights Society Not in
Compliance With Regulations.--(1) A performing rights society
may not--
``(A) file, be a party, or pay the costs of any party in
any civil action alleging the infringement of the copyright
in a work described under paragraph (2); or
``(B) charge a fee under any per programming period license
for a work described under paragraph (2).
``(2) A work referred to under paragraph (1) is any work in
such performing rights society's repertoire that is not
identified and documented as required by the regulations
promulgated under this section.''.
[[Page S2195]]
(b) Technical and Conforming Amendment.--The table of
chapters for title 17, United States Code, is amended by
adding after the item relating to chapter 11 the following:
``12. Negotiations and licensing between proprietors and performing
rights societies........................................1201''.....
SEC. 4. REPORT ON CONSENT DECREE.
(a) In General.--No later than 1 year after the date of the
enactment of this Act, the Register of Copyrights shall
submit a report to the Senate Committee on the Judiciary and
the House of Representatives Committee on the Judiciary on
the administration by the United States District Court for
the Southern District of New York of the consent decree of
March 14, 1950, in United States v. American Society of
Composers, Authors, and Publishers, 1950 Trade Cas.
para.62,595 (S.D.N.Y. 1950) and the consent decree of
December 29, 1966, in United States v. Broadcast Music, Inc.,
1966 Trade Cas. para.71,941 (S.D.N.Y. 1966).
(b) Contents.--The report under this section shall
include--
(1) any recommendation for improvements so that
adjudication under the consent decree may be less time-
consuming and more cost-effective, especially for parties
with fewer resources; and
(2) a determination whether a system of local or regional
arbitration should be implemented.
SEC. 5. STATE COPYRIGHT LICENSING LAWS PREEMPTED.
Section 301 of title 17, United States Code, is amended by
adding at the end the following:
``(g)(1) Any law, statute, or regulation of any State or
local government which requires a performing rights society
to license copyrighted musical compositions to a proprietor
in a particular manner not required by this title, or to
conduct such society's business in any manner not applicable
to all businesses as a general manner, shall be deemed to be
preempted by subsection (a) and of no force or effect.
``(2) For purposes of this subsection, the terms
`proprietor' and `performing rights society' have the same
meanings as such terms are defined under section 1201.''.
SEC. 6. RULE OF CONSTRUCTION.
Nothing in this Act shall be construed to relieve any
performing rights society of any obligation under any consent
decree or other court order governing the operation of such
society, as such decree or order--
(1) is in effect on the date of the enactment of this Act;
(2) may be amended after such date; or
(3) may be issued or agreed to after such date.
SEC. 7. EFFECTIVE DATE.
This Act shall take effect 90 days after the date of the
enactment of this Act.
______
By Mr. LAUTENBERG (for himself and Mrs. Boxer):
S. 1620. A bill to amend the Water Resources Development Act of 1986
to provide for the construction, operation, and maintenance of dredged
material disposal facilities, and for other purposes; to the Committee
on Environment and Public Works.
THE ENVIRONMENTAL DREDGE DISPOSAL ACT OF 1996
Mr. LAUTENBERG. Mr. President, today I am joined by Senator Boxer in
introducing the Environmental Dredge Disposal Act of 1996, a bill to
establish a fair cost-sharing formula for the disposal of dredged
material.
Mr. President, under existing law, the Federal Government helps
assume the cost of the disposal or dumping at sea of dredged material
associated with operation and maintenance of Federal channels. However,
the Federal Government does not provide similar assistance for other
methods of disposal, even when these other methods are more beneficial
for the environment. This inconsistency makes no sense, and threatens
the economic viability of large and small ports throughout the country.
My bill proposes to eliminate this inconsistency, and would ensure
that the Federal cost-sharing formula related to disposal of dredged
material applies regardless of where the dredged material is disposed.
More technically, the bill amends the Water Resources Development Act
of 1986 to make upland, aquatic, and confined aquatic dredged material
disposal facilities associated with the construction, operation, and
maintenance of a Federal navigation project for a harbor or inland
harbor a general navigation feature of a project for the purpose of
cost sharing. The bill includes safeguards to ensure that no single
port receives a competitive advantage as a result of this bill.
Mr. President, in 1824, Congress assigned responsibility for
improving navigation in the still-young Nation's waterways to the
Federal Government. Federal maintenance of a channel system has always
been important for interstate and foreign commerce, and for national
security. That remains true today. Approximately 95 percent of the
Nation's import-export cargo travels on ships through American ports.
Mr. President, dredging the channels of our Nation's ports,
particularly the major load centers, or hubs, is not a discretionary
item. It is essential. Similarly, it is essential that dredged
materials be disposed of.
Unfortunately, many ports are experiencing serious problems with
respect to disposal. These problems have plagued Federal channels and
Federal facilities, such as military marine terminals, as well as local
and private terminals. Ports that face immediate and near-term disposal
problems include Boston, New Jersey-New York, Baltimore, Houston, and
Oakland. Many more ports will face disposal problems in the next
century.
Some ports, including New York Harbor, lack adequate disposal
facilities, which has created great difficulty in obtaining Corps of
Engineers and State dredging permits. The disposal capacity of many
other ports is nearly full. This problem is likely to affect many more
ports in the years ahead.
For many ports with inadequate disposal facilities, disposing dredged
materials in the ocean is not a viable option, because of sediments
that do not meet ocean disposal standards. Other methods of disposal
will have to be pursued. Yet the costs associated with these
alternatives often are high. Given the national interests at stake, the
Federal Government needs to share in the costs of all viable
alternatives.
Unfortunately, current law prevents such cost sharing in the case of
facilities located on land. There is no real justification for this
limitation. And without some modification of this law, many ports may
well face a serious disposal crisis in the near future.
Mr. President, let me take a moment to comment on the environmental
implications of this matter. Many ports are located in estuaries and
coastal areas that represent significant natural resources. I recognize
that some might believe that the protection and enhancement of those
resources is inconsistent with the operation of a busy port. However,
that is not true. In the New York metropolitan region and the bay area
of northern California, for example, both ports and natural resources
coexist, and provide important economic benefits. In my view, Federal
policy should seek to promote both port commerce and environmental
resources. This bill would help, by making possible the construction of
confined disposal facilities that would support development in an
environmentally constructive manner.
Mr. President, if commerce is to progress in this Nation, if import-
export trade is to increase, if our Nation is to benefit from
international trade agreements, our infrastructure must be prepared to
make the transportation of goods efficient and cost effective. As
Transportation Secretary Federico Pena has acknowledged, the port
dredging problem is a national transportation problem. Secretary Pena
organized the Interagency Working Group on the Dredging Process to
determine how to improve Federal performance in several areas,
including interagency coordination, the regulatory process, and
disposal issues. The final report to the Secretary said:
Over the past two decades, a number of factors have
complicated the development, operation and maintenance of the
nation's harbors, particularly in the area of dredged
material management. These factors include increases in the
demands of commerce, rapid evolution of shipping practices .
. ., increasing environmental awareness and mounting
environmental problems affecting coastal areas and ocean
waters, heavy population shifts to coastal areas and a
general increase in non-Federal responsibilities in the
development and management of navigation projects. As a
result, dredged material management has often become a
contentious problem at all stages of harbor development and
operation. . . . Left unattended, these problems could cause
a crisis.
The report specifically discussed the problem of an inconsistent
dredged material management policy, which would be addressed by this
legislation.
I would note, Mr. President, that this legislation is supported by
the American Association of Port Authorities, which represents more
than 85 ports in 30 States.
Mr. President, I look forward to working with my colleagues and the
corps to move this legislation forward.
[[Page S2196]]
Mr. President, I ask unanimous consent that a copy of the bill be
printed in the Record along with a letter signed by a number of
organizations to Chairmen Chafee and Shuster expressing their support
for equitable Federal cost sharing in the disposal of dredged material.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 1620
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Environmental Dredge
Disposal Act of 1996''.
SEC. 2. DREDGED MATERIAL DISPOSAL FACILITIES.
Section 101 of the Water Resources Development Act of 1986
(33 U.S.C. 2211) is amended by adding at the end the
following:
``(f) Dredged Material Disposal Facilities.--
``(1) In general.--Notwithstanding any other provision of
law, after the date of enactment of this subsection, the
provision of upland, aquatic, and confined aquatic dredged
material disposal facilities associated with the
construction, operation, and maintenance of all Federal
navigation projects for harbors and inland harbors (including
diking and applying dredged material to beneficial use and
other improvements necessary for the proper disposal of
dredged material) shall be considered to be a general
navigation feature of a project for the purpose of cost
sharing under this section.
``(2) Limitations on federal share of project costs.--
``(A) Funds not required for operation and maintenance.--No
funds comprising the Federal share of the costs associated
with the construction of a dredged material disposal facility
for the operation and maintenance of a Federal navigation
project for a harbor or inland harbor in accordance with
paragraph (1) that are eligible to be paid with sums
appropriated out of the Harbor Maintenance Trust Fund under
paragraph (3) shall be expended for construction until the
Secretary, in the Secretary's discretion, determines that the
funds are not required to cover eligible operation and
maintenance costs assigned to commercial navigation.
``(B) Maximum federal share for operation and
maintenance.--The Federal share of the costs of activities
described in paragraph (3) for a project shall not exceed
$25,000,000 for any fiscal year.
``(3) Operation and maintenance costs.--For the purposes of
section 210, eligible operation and maintenance costs shall
include (in addition to eligible operation and maintenance
costs assigned to commercial navigation)--
``(A) the Federal share of the costs of constructing
dredged material disposal facilities associated with the
operation and maintenance of all Federal navigation projects
for harbors and inland harbors;
``(B) the costs of operating and maintaining dredged
material disposal facilities associated with the
construction, operation, and maintenance of all Federal
navigation projects for harbors and inland harbors;
``(C) the Federal share of the costs of environmental
dredging and disposal facilities for contaminated sediments
that are in, or that affect the maintenance of, Federal
navigation channels and the mitigation of environmental
impacts resulting from Federal dredging activities; and
``(D) the Federal share of the costs of dredging,
management, and disposal of in-place contaminated sediments
and other environmental remediation in critical port and
harbor areas to facilitate maritime commerce and navigation.
``(4) Preference.--In undertaking activities described in
paragraph (3)(D), the Secretary shall give preference to port
areas with respect to which, and in accordance with the
extent that, annual payments of harbor maintenance fees
exceed Federal expenditures for projects in the port area
that are eligible for reimbursement out of the Harbor
Maintenance Trust Fund.
``(5) Applicability.--This subsection applies to the
provision of a dredged material disposal facility with
respect to which, and to the extent that--
``(A) a contract for construction (or for construction of a
usable portion of such a facility); or
``(B) a contract for construction of an associated
navigation project (or usable portion of such a project);
has not been awarded on or before the date of enactment of
this subsection.
``(6) Amendment of existing agreements.--
``(A) In general.--Unless otherwise requested by the non-
Federal interest within 30 days after the date of enactment
of this subsection, each cooperative agreement entered into
between the Secretary and a non-Federal interest under this
section shall be amended, effective as of the date of
enactment of this subsection, to conform to this subsection,
including provisions relating to the Federal share of project
costs for dredged material disposal facilities.
``(B) Application of amendment.--An amendment to a
cooperative agreement required by subparagraph (A) shall be
applied prospectively.
``(7) Effect on non-federal costs of other dredged material
disposal facilities.--Nothing in this subsection shall
increase, or result in the increase of, the non-Federal share
of the costs of any dredged material disposal facility
required by the authorization for a project.''.
____
February 26, 1996.
Re action on a water resources development act.
Hon. John Chafee,
Chairman, Senate Committee on Environment and Public Works,
Dirksen Senate Office Building, Washington, DC.
Hon. Bud Shuster,
Chairman, House Transportation and Infrastructure Committee,
Rayburn House Office Building, Washington, DC.
Dear Gentlemen: Our nation's deep-draft commercial
navigation system is essential to U.S. trade, economic
development and national security objectives. It is critical
that Congress enact a Water Resources Development Act (WRDA)
in 1996 to ensure the continued capital investment in our
ports and waterways which is essential to the safe and
efficient movement of cargo in international and domestic
trade.
Over 95% of U.S. international trade moves through U.S.
ports, and trade volumes are expected to triple by the year
2010. Shippers increasingly rely on larger vessels and just
in time delivery of goods while, at the same time, there is
public concern for the safe transit of these vessels. U.S.
navigation channels must be improved and maintained to meet
these demands.
More than 90 percent of our ports require regular
maintenance dredging. These ports are diverse--they include
our largest container ports, as well as other ports that
principally handle such products as petroleum, steel,
automobiles and fruit. Because many U.S. export commodities--
grain, coal, and forest products, to name a few--face tough
competition around the world, even marginal transportation
cost increases affect their marketability and consequently,
the nation's balance of trade. It is clear that dredging,
whether to maintain existing depths or to deepen channels to
meet the demand of the next generation of ocean carriers, is
as essential to our nation's commerce as maintaining and
improving our highways and railroads.
However, for the first time since the passage of the Water
Resources Development Act of 1986, Congress failed to enact a
biennial water resource bill in 1994, and did not live up to
its commitment to the federal/port partnership. If a
navigation project is economically justified and supported
financially by the local project sponsor throughout the
arduous planning process, the sponsor must be able to rely
on dependable water resource authorization legislation and
annual appropriations levels.
In addition to project authorization, one important
provision that should be included in any WRDA bill would
clarify that the cost of dredged material disposal facilities
should be cost-shared at the same rate as other navigation
project elements. The Senate Environment and Public Works
Committee has already approved a WRDA bill, S. 640. The
Committee Report on S. 640 noted that: ``With respect to the
construction of dredged material disposal facilities, it is
apparent that cost-sharing inconsistencies do exist. Federal
and non-Federal cost-sharing responsibilities for dredged
material disposal vary from project to project, region to
region, and port to port depending on when the project was
authorized. In addition, current cost-sharing policies favor
open water disposal * * * [T]he Committee urges the
Administration to report possible solutions to the Congress
for consideration.''
The Report of the Federal Interagency Working Group on the
Dredging Process also recommended this clarification of
federal cost sharing for disposal in order to level the
playing field in selection of disposal alternatives and to
facilitate the implementation of important navigation
projects and appropriate disposal options. As the federal
government mandates more restrictive environmental regulation
of dredged material disposal, it is appropriate that the
federal government, where it does not do so already, share
the costs to assure compliance with those environmental
mandates and to provide for sufficient and safe disposal
capacity.
The undersigned organizations urge you to make water
infrastructure a top priority for your Committees this year.
Congress must enact a Water Resources Development Act in 1996
and continue the vital investment in our national water
resources and navigation infrastructure. Thank you.
Sincerely,
American Association of Port Authorities, American
Institute of Merchant Shipping, American Maritime
Congress, American Petroleum Institute, American Pilots
Association, American President Lines, Inc., American
Waterways Operators, Inc., Bay Area Planning Coalition,
Crowley Maritime Corp., Dredging Contractors of
America, Intermodal Conference of the American Trucking
Associations, International Longshoremen's Association,
International Longshoremen's and Warehousemen's Union,
International Council of Cruise Lines, Lake Carriers
Association, Maersk Line, Inc., Maritime Institute for
Research and Industrial Development, Matson Navigation
Company, Inc., National
[[Page S2197]]
Association of Waterfront Employers, National Waterways
Conference, Pacific Northwest Waterways Association,
Propeller Club of the United States, Sea-Land Service,
Inc., Transportation Institute.
Mrs. BOXER. Today I am joining with Senator Frank R. Lautenberg in
introducing legislation that will not only bring balance in the
economic burden sharing between our Nation's ports and the Federal
Government but also will provide real improvements to our marine
environments. Or, as one local editorial headline called it: ``Turning
mush to marsh.''
I am talking about providing real economic incentives to make upland
disposal of dredged material feasible for our ports. In many cases,
this disposal can be used to restore wetlands, particularly for the San
Francisco Bay Delta system.
The San Francisco Bay-Delta Estuary is the largest and most
significant estuary along the entire west coast of the Americas.
Estuaries are one of the most productive types of ecosystems in the
world. At the same time, they are one of the most degraded by human
activities. Habitat losses, huge fresh water diversions, and
pollution--more than 60 percent of the entire runoff from the entire
State of California drains into the estuary--have significantly altered
the ecosystem. Bay filling has vastly depleted this habitat resource.
The bay area is also the center of a $5.4 billion-a-year economic
engine providing 100,000 jobs relating to its role as a center of
international maritime commerce.
Concern over environmental degradation resulted in ``mudlock''
between our ports and the environmental community. Sensing the need to
establish rational, affordable, and environmentally responsible
dredging policies, in 1990 the U.S. Environmental Protection Agency,
the U.S. Army Corps of Engineers, the San Francisco Bay Regional Water
Quality Control Board, the Bay Conservation and Development Commission
joined with navigation and fishing interests, the environmental
community, and the public at-large to establish a comprehensive long-
term management strategy for bay area dredged material.
One of their successes was the establishment of the Sonoma baylands
demonstration project, a congressional authorized dredged disposal site
cost-shared between the Federal Government and local agencies. This
former tidal wetlands was drained for agricultural use during the last
century. The 325-acre site has helped restore needed wetlands in the
region and reverse their decline. In addition, it provides habitat for
two endangered species--the California clapper rail and the salt marsh
harvest mouse.
But that was a one-time congressional demonstration project. We need
to correct the underlying law that leaves local agencies with the full
cost burden of establishing an upland site for disposal of dredge
spoil.
Every year an average of 6 million cubic yards of sediments must be
dredged from shipping channels and related navigation facilities
throughout the bay area, which is the home of the ports of Oakland,
Richmond, San Francisco, and Redwood City. The San Francisco Bay
Conservation and Development Commission has concluded that in-bay
disposal sites cannot accommodate future dredging and disposal needs.
The bay area's maritime industry is expected to need to dispose of
about 300 million cubic yards of sediment over the next 50 years. Due
to the growth of Pacific rim countries, export cargo moving through the
west coast ports has doubled in the last 2 years. The entire
maintenance dredging and channel deepening program provides the
critical link for Pacific rim and world trade which contributes
directly to our regional, State, and national economies.
In 1994, the Federal Government permitted an ocean disposal site
nearly 60 miles off shore and included costly ocean floor monitoring
procedures. Annual disposal capacity is limited at this site. Even if
seemingly a viable option, in some instances weather and wave
conditions impede access of the barges to this offshore site and
increases the cost. Dredge material, some of which could be used to
restore wetlands, is lost.
The creation of vital wetlands through the beneficial use of dredged
material has proven to be highly popular in California.
Several bay area sites, both publicly and privately owned, studied in
the course of the long term management strategy show clear development
potential for both beneficial use and confined disposal. However, the
process by which the Federal Government and local agencies share the
costs and other responsibilities of dredging and disposal projects
creates many barriers to completion, because it does not reflect real
environmental and economic realities.
The Federal Government does not participate at all in upland
disposal, while ocean disposal is cost shared by the Federal and State
or local agencies. This inconsistency is prejudicial to those ports
which have run out of aquatic disposal options and are forced to use
upland disposal without any Federal financial assistance.
The availability of dredged disposal capacity is a growing concern in
many areas of the country. We need consistent Federal-local sponsor
cost sharing across all dredged material disposal methods. Uplands
disposal that promotes environmental restoration should be given
priority consideration.
That is why this bill is important. It would make the provision of
upland, aquatic and confined aquatic, dredge material disposal
facilities associated with the construction, operation, and maintenance
of Federal navigation projects as a general navigation feature for the
purpose of cost sharing.
A consistent Federal policy that provides for cost-sharing upland
disposal facilities is a ``win-win'' for the environment and the
economy of California. I urge my colleagues to support this legislation
and demonstrate that we can save the environment and boost our local,
regional, and national economies at the same time.
______
By Mr. HATCH:
S. 1622. A bill to amend the independent counsel statute to permit
appointees of an independent counsel to receive travel reimbursements
for successive 6-month periods after 1 year of service; to the
Committee on the Judiciary.
amendments to the independent counsel reauthorization act
Mr. HATCH. Mr. President, I rise to introduce an amendment to the
Independent Counsel Reauthorization Act of 1994. My legislation would
provide travel expense reimbursements to appointees of the Office of
Independent Counsel for successive 6-month periods after 1 year of
service.
This legislation is necessary because the Independent Counsel
Reauthorization Act precludes attorneys and other staff fired by an
independent counsel from receiving reimbursements for travel expenses
they incur after they have worked for an independent counsel
investigation for 18 months. Currently, the act authorizes only one 6-
month extension for travel reimbursement purposes after 1 year of
service.
As a result, employees of the Independent Counsel may be forced to
resign as they approach their 18-month anniversaries in order to avoid
incurring the additional expense of living away from home for an
extended period of time. These employees must then be replaced with new
personnel having less knowledge and experience, thereby causing harm
and delay to the Independent Counsel's investigation.
The reimbursement limitation will begin to have full effect in the
next 2 months, which is a critical time for the Independent Counsel's
investigation. As the decision of the eighth circuit on March 15, 1996,
reinstating the indictments against Gov. Jim Guy Tucker makes clear,
the Independent Counsel's work has been effective in bringing to light
public corruption at the highest levels. The trial of United States
versus McDougal started on March 4, 1996. Seven employees, including
four attorneys, will have reached their 18-month anniversaries by the
end of the trial.
Mr. President, Congress included the 18 month limitation to control
spending and fiscal irresponsibility. But we did not anticipate an
investigation such as this one, in which many individuals have been
temporarily relocated to a remote office. The Independent Counsel's
ability to complete the investigation in a timely manner may be
seriously hindered, and costs may actually increase, if we do not pass
this legislation.
My legislation will remedy this problem by permitting Independent
Counsel
[[Page S2198]]
employees to receive travel reimbursements for successive 6-month
periods after their first year of service, provided that such payment
is certified at the beginning of each 6-month period as being in the
public interest to carry out the purposes of the 1994 act. While some
of us may have reservations about the constitutionality of an
Independent Counsel or the current matters being investigated, we
should all agree that if we are going to have an Independent Counsel,
it must be given the necessary resources to do a thorough, complete
job.
______
By Mr. WARNER:
S. 1623. A bill to establish a National Tourism Board and a National
Tourism Organization, and for other purposes.
THE TRAVEL AND TOURISM PROMOTION ACT OF 1996
Mr. WARNER. Mr. President, many of us do not focus on the
impact that the travel and tourism industry has on our economy. Tourism
means jobs in all of our States and tax revenue for our Federal, State,
and local treasuries.
Whether it be our hotels, airlines, restaurants, campgrounds,
amusement parks, or historically significant sights, tourism works for
America.
The U.S. travel and tourism industry is the second leading provider
of jobs in this Nation and the third largest retail industry giving the
United States a $21.6 billion trade surplus.
Just last year, visitors from abroad brought approximately $80
billion to our economy which is one-fifth of the total $400 billion
provided to the economy by the travel and tourism industry. It should
be an economic powerhouse.
However, our lead is slipping. For the past several years the U.S.
share of the international travel market has declined. Last year, 2
million fewer foreign visitors came to the United States, representing
a 19-percent decline. This translated into 177,000 fewer travel-related
jobs.
Mr. President, we must reverse this decline. We need to attract more
international tourists and enhance the travel experience for both
domestic and international travelers. The United States must remain the
destination of choice for world travelers.
I am therefore introducing legislation today to create a public-
private partnership between the travel and tourism industry and the
Federal Government to aggressively market the promotion of
international travel to the United States.
With the elimination of the U.S. Travel and Tourism Administration,
the United States will become the only major developed nation without a
Federal tourism office. We need a national strategy to maintain and
increase our share of the global travel market. Other nations pour
money into marketing attempting to lure tourists to their shores, and
they are doing it at our expense. This legislation will provide the
tools with which the United States can compete with any nation.
We can counter these foreign promotion dollars with a combination of
technical assistance from the Federal Government and financial
assistance from the private sector. This legislation will create a true
public-private partnership between the travel and tourism industry and
the public sector to effectively promote international travel to the
United States. It supplants the big-government, top-down bureaucracy
which was eliminated with the U.S. Travel and Tourism Administration.
The bill establishes a Federal charter for a National Tourism Board
and a National Tourism Organization, which will act as a not-for-profit
corporation. Members of the National Tourism Board will be appointed by
the President with the input of the travel and tourism industry to
advise the President and Congress on policies to improve the
competitiveness of the U.S. travel and tourism industry in the global
marketplace.
The National Tourism Organization will be charged with implementing
the tourism promotion strategy proposed by the National Tourism Board.
The president of the National Tourism Organization will also serve as a
member of the Trade Promotion Coordinating Committee, which is the
agency that develops our U.S. export trade promotion and financing
programs, thereby further promoting the economic importance of the
travel and tourism industry.
A primary task of the National Tourism Organization will be the
establishment of a travel-tourism data bank to collect international
market data for dissemination to the travel and tourism industry and to
promote tourism to the United States at international trade shows.
No later than 1 year upon enactment of this legislation, the officers
of the organization will meet to make recommendations for the long-term
financing of the organization. However, no Federal funding is
associated with this legislation. This is an industry-funded and
industry-directed initiative.
Travel industry leaders from around the Nation enthusiastically
endorsed the plan embodied in this bill when it was introduced at the
just-completed White House conference on travel and tourism. In
addition, this bill has the support of the White House, the House
leadership, and 189 House Members.
Together, through the collective talent of both the board and the
organization, as well as the technical assistance provided by the
Federal Government through its staff and data collection, it is my hope
that America will once again launch itself into the international
tourism market as the destination of choice--bringing more jobs as well
as revenue to our States and local communities.
____________________