[Congressional Record Volume 146, Number 123 (Thursday, October 5, 2000)]
[Senate]
[Pages S10002-S10003]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




      RECALCULATING FRANCHISE FEE OWED BY FORT SUMTER TOURS, INC.

  The Senate proceeded to consider the bill (S. 2331) to direct the 
Secretary of the Interior to recalculate the franchise fee owed by Fort 
Sumter Tours, Inc., a concessioner providing service to Fort Sumter 
National Monument, SC, which had been reported from the Committee on 
Energy and Natural Resources with an amendment to strike out all after 
the enacting clause and insert the part printed in italic.

     SECTION 1. ARBITRATION REQUIREMENT.

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

     SEC. 2. APPOINTMENT OF THE ARBITRATOR.

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

     SEC. 3. SCOPE OF THE ARBITRATION.

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

     SEC. 4. EFFECT OF DECISION.

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

     SEC. 5. GENERAL AUTHORITY.

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

     SEC. 6. ENFORCEMENT.

       A party aggrieved by the alleged failure, neglect, or 
     refusal of another to arbitrate under this Act, or by any 
     unreasonable delay in the appointment of the arbitrator or 
     the conduct of the arbitration, may petition the United 
     States District Court for the District of South Carolina or 
     the United States District Court for the District of Columbia 
     for an order directing that the arbitration proceed in the 
     manner provided by this Act.
         Amend the title to read: ``A bill to require the 
     Secretary of the Interior to submit the dispute over the 
     franchise fee owed by Fort Sumter Tours, Inc. to binding 
     arbitration.''.

  The amendment (No. 4296) was agreed to, as follows:


                           amendment no. 4296

       Strike all and insert the following:

     ``SECTION 1. ARBITRATION REQUIREMENT.

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

     ``SEC. 2. APPOINTMENT OF THE ARBITRATOR.

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

     ``SEC. 3. SCOPE OF THE ARBITRATION.

       ``(a) Sole Issues To Be Decided.--The arbitrator shall, 
     after affording the parties an opportunity to be heard in 
     accordance with section 579 of title 5, United States Code, 
     determine--
       ``(1) the appropriate amount of the franchise fee under the 
     Contract for the period from June 13, 1991 through December 
     31, 2000 in accordance with the terms of the Contract; and
       ``(2) any interest or penalties on the amount owed under 
     paragraph (1).
       ``(b) De Novo Decision.--The arbitrator shall not be bound 
     by an prior determination of the appropriate amount of the 
     fee by the Secretary or any prior court review thereof.
       ``(c) Basis for Decision.--The arbitrator shall determine 
     the appropriate amount of the fee based upon law in effect on 
     the effective date of the contract and the terms of the 
     Contract.

     ``SEC. 4. FINAL DECISION.

       ``The arbitrator shall issue a final decision not later 
     than 300 days after the date of enactment of this Act.

     ``SEC. 5. EFFECT OF DECISION.

       ``(a) Retroactive Effect.--The amount of the fee determined 
     by the arbitrator under

[[Page S10003]]

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

     ``SEC. 6. GENERAL AUTHORITY.

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

  The committee amendment in the nature of a substitute, as amended, 
was agreed to.
  The bill (S. 2331), as amended, was read the third time and passed, 
as follows:

                                S. 2331

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

     SECTION. 1. ARBITRATION REQUIREMENT.

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

     SEC. 2. APPOINTMENT OF THE ARBITRATOR.

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

     SEC. 3. SCOPE OF THE ARBITRATION.

       (a) Sole Issues To Be Decided.--The arbitrator shall, after 
     affording the parties an opportunity to be heard in 
     accordance with section 579 of title 5, United States Code, 
     determine--
       (1) the appropriate amount of the franchise fee under the 
     Contract for the period from June 13, 1991 through December 
     31, 2000 in accordance with the terms of the Contract; and
       (2) any interest or penalties on the amount owed under 
     paragraph (1).
       (b) De Novo Decision.--The arbitrator shall not be bound by 
     any prior determination of the appropriate amount of the fee 
     by the Secretary or any prior court review thereof.
       (c) Basis for Decision.--The arbitrator shall determine the 
     appropriate amount of the fee based upon the law in effect on 
     the effective date of the Contract and the terms of the 
     Contract.

     SEC. 4. FINAL DECISION.

       The arbitrator shall issue a final decision not later than 
     300 days after the date of enactment of this Act.

     SEC. 5. EFFECT OF DECISION.

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

     SEC. 6. GENERAL AUTHORITY.

       Except to the extent inconsistent with this Act, the 
     arbitration under this Act shall be conducted in accordance 
     with subchapter IV of title 5, United States Code.
  The title was amended so as to read: ``A bill to require the 
Secretary of the Interior to submit the dispute over the franchise fee 
owed by Fort Sumter Tours, Inc. to binding arbitration.''.

                          ____________________