[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.

                          ____________________