[Congressional Record Volume 146, Number 38 (Thursday, March 30, 2000)]
[Senate]
[Pages S1989-S1990]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. HOLLINGS:
  S. 2331. A bill to direct the Secretary of the Interior to 
recalculate the franchise fee owned by Fort Sumter Tours, Inc., a 
concessioner providing services to Fort Sumter National Monument, South 
Carolina; to the Committee on Energy and Natural Resources.


               fort sumter national monument concessions

 Mr. HOLLINGS. Mr. President, I rise today to introduce 
legislation in an attempt to settle a long-standing dispute between the 
National Park Service (NPS) and Fort Sumter Tours, Inc. (FST) regarding 
the calculation of FST's Concessioner Franchise Fees.
  Fort Sumter National Monument was established by Congress in 1948 and 
is located in the harbor of Charleston, South Carolina. Congress 
directed that the National Park Service (NPS) ``Shall maintain and 
preserve it [the fort] for the benefit and enjoyment of the people of 
the United States.'' (16 USC 450ee et. seq.)
  Since 1962, the private concessioner, Fort Sumter Tours, Inc. (FST), 
has provided visitors with service to this national monument. In 1985, 
FST was asked by NPS to acquire a new landside docking facility and 
invest in a new boat that would cost FST over $1 million. In exchange 
for these investments, an agreement was reached between FST and the NPS 
to provide a fifteen-year contract, with a franchise fee set by the NPS 
at 4.25 percent of gross receipts.
  By statutory law all park concessionaires are required to pay a 
franchise fee based upon a percentage of

[[Page S1990]]

their gross receipts. In 1992 the NPS unilaterally attempted to 
increase FST's franchise fee from 4.25 percent to 12 percent and a 
dispute has existed ever since. This increase was based upon a 
Franchise Fee Analysis (FFA) prepared by the NPS, which FST claims to 
be inconsistent with Park Service guidelines existing at that time. I 
believe if errors have been made they need to be corrected.
  While the Courts have ruled that the NPS has the authority to raise 
the franchise fee, that is not the actual dispute. The actual dispute 
is whether the NPS calculated the increase in these fees appropriately. 
This legislation provides for arbitration between FST and the NPS to 
settle a dispute that has lasted for almost eight years. By the NPS's 
own account, FST has been a valuable service benefiting thousands and 
thousands of visitors to Fort Sumter National Monument. It is time for 
the NPS and FST to settle their differences and move forward.
  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:
       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. RECALCULATION OF FRANCHISE FEE.

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