[Senate Report 112-118]
[From the U.S. Government Publishing Office]


                                                       Calendar No. 280
112th Congress                                                   Report
                                 SENATE
 2d Session                                                     112-118

======================================================================



 
ESTABLISHMENT OF A MEMORIAL TO HONOR CONTRIBUTIONS OF FREE PERSONS AND 
                 SLAVES DURING THE AMERICAN REVOLUTION

                                _______
                                

                January 13, 2012.--Ordered to be printed

 Filed, under authority of the order of the Senate of December 17, 2011

                                _______
                                

   Mr. Bingaman, from the Committee on Energy and Natural Resources, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 883]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 883) to authorize National Mall Liberty 
Fund D.C. to establish a memorial on Federal land in the 
District of Columbia to honor free persons and slaves who 
fought for independence, liberty, and justice for all during 
the American Revolution, having considered the same, reports 
favorably thereon without amendment and recommends that the 
bill do pass.

                                Purpose

    The purpose of S. 883 is to authorize the National Mall 
Liberty Fund D.C., to construct a memorial on Federal land in 
the District of Columbia to honor the 5,000 slaves and free 
Black persons who served as soldiers or provided civilian 
assistance during the American Revolution.

                          Background and Need

    The Commemorative Works Act (40 U.S.C. 8901 et seq.) 
establishes the requirements for the construction of 
commemorative works on Federal land in the District of 
Columbia. In general, the Act requires that a private entity 
wishing to construct a memorial must first get authorization 
from Congress. In 1986, Congress authorized the Black 
Revolutionary War Patriots Memorial Foundation to establish the 
Black Revolutionary War Patriots Memorial to honor the 5,000 
courageous slaves and free Black persons who served as soldiers 
or provided civilian assistance during the American Revolution 
(Public Law 99-558).
    In 1987 Congress enacted a second law, Public Law 100-265, 
authorizing placement of that memorial within the monumental 
core area as it was then defined by the Commemorative Works 
Act. In 1988, the National Park Service, the Commission of Fine 
Arts, and the National Capital Planning Commission approved a 
site in Constitution Gardens for the Black Revolutionary War 
Patriots Memorial and, in 1996, approved the final design. 
Despite four extensions of the memorial's legislative 
authorization over 21 years, the Foundation was unable to raise 
sufficient funds for construction, the authority (and 
associated site and design approvals) finally lapsed in October 
2005, and the Foundation disbanded with numerous outstanding 
debts and unpaid creditors.
    S. 883 would authorize another non-profit organization, the 
National Mall Liberty Fund D.C., to construct a commemorative 
work honoring the same individuals as proposed by the Black 
Revolutionary War Patriots Memorial Foundation, subject to the 
requirements of the Commemorative Works Act.

                          Legislative History

    S. 883 was introduced by Senators Lieberman and Grassley on 
May 4, 2011. The Subcommittee on National Parks held a hearing 
on S. 883 on July 28, 2011. At its business meeting on November 
10, 2011, the Committee on Energy and Natural Resources ordered 
S. 883 favorably reported without amendment.
    A similar bill, S. 2738, was introduced by Senators Dodd 
and Grassley in the 111th Congress. The Subcommittee on 
National Parks held a hearing on the bill on December 3, 2009 
(S. Hrg. 111-318). S. 2738 was favorably reported with 
amendments by the Committee at its business meeting on June 21, 
2010 (S. Rept. 111-263).

                        Committee Recommendation

    The Senate Committee on Energy and Natural Resources, in 
open business session on November 10, 2011, by voice vote of a 
quorum present recommends that the Senate pass S. 883.

                      Section-by-Section Analysis

    Section 1 contains a Congressional finding that the subject 
matter of the proposed memorial--the contributions of free 
persons and slaves who fought during the American Revolution--
is of preeminent historical and lasting significance, as 
required under the Commemorative Works Act. The effect of this 
provision is that the memorial can be located within the 
monumental core area (Area I) referenced in the Commemorative 
Works Act without the need for a subsequent Act and Congress 
approving such location.
    Section 2 defines key terms used in the bill.
    Section 3(a) authorizes the establishment of a memorial on 
federal land in the District of Columbia to recognize and 
commemorate the contributions of 5,000 African Americans who 
served as soldiers and sailors or provided civilian assistance 
during the Revolutionary War.
    Subsection (b) prohibits the use of federal funds to 
establish the memorial.
    Subsection (c) directs that the memorial be established 
according to the Commemorative Works Act. (40 U.S.C. 8901 et 
seq.).
    Section 4 repeals the two laws relating to the 
authorization and site selection of the previously authorized 
Black Revolutionary War Patriots Memorial, the legislative 
authority for which has expired.

                   Cost and Budgetary Considerations

    The following estimate of costs of this measure has been 
provided by the Congressional Budget Office:

S. 883--A bill to authorize National Mall Liberty Fund D.C. to 
        establish a memorial on Federal land in the District of 
        Columbia to honor free persons and slaves who fought for 
        independence, liberty, and justice for all during the American 
        Revolution

    S. 883 would authorize a nonprofit organization to 
establish a commemorative work honoring African-American 
Revolutionary War soldiers and others. The bill would affect 
direct spending; therefore, pay-as-you-go procedures apply. 
However, CBO estimates that the net effect on the budget of 
enacting the legislation would be insignificant in any year.
    S. 883 would authorize the National Mall Liberty Fund D.C. 
to establish a memorial to honor slaves and free persons who 
fought for or provided other assistance to the American war 
effort during the American Revolution. The legislation would be 
subject to the requirements of the Commemorative Works Act 
(CWA) and would prohibit the use of federal funds for the 
memorial. Under the CWA, any entity that receives a permit to 
construct a memorial in the District of Columbia or its 
environs must donate an amount equal to 10 percent of the 
memorial's estimated construction cost. Based on similar 
commemorative projects, CBO expects that the deposit would not 
be received for several years and that spending of the amounts 
received would be minimal in any fiscal year.
    S. 883 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Martin von 
Gnechten. The estimate was approved by Theresa Gullo, Deputy 
Assistant Director for Budget Analysis.

                      Regulatory Impact Evaluation

    In compliance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee makes the following 
evaluation of the regulatory impact which would be incurred in 
carrying out S. 883.
    The bill is not a regulatory measure in the sense of 
imposing Government-established standards or significant 
economic responsibilities on private individuals and 
businesses.
    No personal information would be collected in administering 
the program. Therefore, there would be no impact on personal 
privacy.
    Little, if any, additional paperwork would result from the 
enactment of S. 883, as ordered reported.

                   Congressionally Directed Spending

    S. 883, as ordered reported, does not contain any 
congressionally directed spending items, limited tax benefits, 
or limited tariff benefits as defined in rule XLIV of the 
Standing Rules of the Senate.

                        Executive Communications

    The testimony provided by the National Park Service at the 
July 28, 2011, Subcommittee on National Parks hearing on S. 883 
follows:

  Statement of Peggy O'Dell, Deputy Director, National Park Service, 
                       Department of the Interior

    Mr. Chairman and members of the subcommittee, thank you for 
the opportunity to appear before you today to present the 
Department of the Interior's views on S. 883, a bill to 
authorize the National Mall Liberty Fund D.C. to establish a 
memorial on federal land in the District of Columbia to honor 
free persons and slaves who fought for independence, liberty, 
and justice for all during the American Revolution.
    The Department supports S. 883 if amended to conform to the 
principles, processes, and requirements set forth in the 
Commemorative Works Act, which has successfully guided the 
process for establishing monuments in the Nation's Capital 
since it was enacted in 1986 and as amended since that time.
    The bill would authorize the establishment of a memorial on 
federal land in Area I in the District of Columbia to recognize 
and commemorate the contributions of 5,000 African Americans 
who served as soldiers and sailors or provided civilian 
assistance during the American Revolutionary War. The bill 
prohibits the use of federal funds to establish the memorial, 
directs that the memorial be established according to the 
Commemorative Works Act, and repeals two laws for the 
authorization and site selection of a similar memorial proposal 
that have already lapsed by operation of law.
    In 1986, Congress enacted the Commemorative Works Act to 
guide the process for establishing memorials in the Nation's 
Capital. Since its enactment, the Act has played an important 
role in ensuring that memorials in the Nation's Capital are 
located, designed and erected in a manner that is worthy of 
their historically significant subjects. The act was amended in 
2003 to, among other things, provide for establishment of the 
Reserve where no additional memorials may be located.
    While S. 883 states that the memorial shall be established 
in accordance with the Commemorative Works Act, the bill 
contravenes a critical requirement of the Commemorative Works 
Act by pre-authorizing the memorial to be located within Area 
I. In effect, the bill directs that the memorial be located 
within Area I without benefit of public participation or the 
participation of the Secretary of the Interior, circumventing 
the process Congress has adhered to since 1986. This preempts 
the Secretary's responsibility to recommend Area I designations 
to Congress for Congress to consider and act upon, and it 
curtails the roles of the National Capital Planning Commission 
and the Commission of Fine Arts.
    The Commemorative Works Act, as amended, designates federal 
land in two areas in the District of Columbia and environs on 
which memorials could be sited within the District of Columbia, 
and one area, known as the Reserve, where no additional 
memorials can be located. These areas are depicted on the 
attached map which is designated in the Act. All memorials 
authorized to be located on this federal land in the District 
of Columbia and environs are authorized to seek sites within 
the portion of the map designated as Area II. However, a new 
memorial may be located in Area I only if the Secretary 
determines, after consulting with the National Capital Memorial 
Advisory Commission, which holds public meetings, that the 
memorial's subject warrants location in Area I, and if the 
Congress agrees with the Secretary's determination by passing 
legislation to this effect within 150 days. Area I is within 
the Monumental Core of the Nation's Capital extending from 
Third Street, N.W. to the eastern boundary of Arlington 
National Cemetery and along the shoreline on the Virginia side 
of the Potomac River.
    The Department's position regarding adherence to the 
Commemorative Works Act process for Area I designation is 
consistent with the position taken by the National Capital 
Memorial Advisory Commission, which reviewed S. 883 at its 
public meeting on June 23, 2011. The Commission recommended 
support for S. 883 if brought into conformance with the 
Commemorative Works Act by deleting the word ``preeminent'' in 
Section 1, and the reference to Area I in Section 2(A)(i).
    In the Department's view, following the Commemorative Works 
Act would not hinder the Liberty Memorial Foundation in its 
ability to establish this memorial. In fact, if the Foundation 
obtains an Area I designation through the Commemorative Works 
Act process, the Foundation's 7-year statutory period to 
establish the memorial is automatically extended seven more 
years, beginning on the enactment of the Area I designation, 
instead of expiring at the 7-year point. This change to give 
sponsors seven more years for a memorial when seeking an Area I 
designation, was made by Congress when it amended the 
Commemorative Works Act in 2003, and as a result, sponsors no 
longer need to factor into their goals that seeking an Area I 
designation would reduce the time available to them to locate, 
fund and design their memorials.
    We also would point out that S. 883 makes no provisions for 
the disposition of monies raised in excess of funds needed for 
the establishment of the memorial or to hold in reserve the 
amount available should the authority to establish the memorial 
lapse. The Department recommends that the bill be amended to 
clarify the disposition of these funds.
    The Department reiterates our support of the establishment 
of a memorial in the Nation's Capital that recognizes and 
commemorates the contributions of African Americans who fought 
for independence, liberty and justice during the Revolutionary 
War. We look forward to the opportunity to work with the 
Subcommittee to develop language that would provide for such 
authorization in a manner consistent with the principles, 
processes, and requirements set forth by existing authorities.
    Mr. Chairman, that concludes my prepared testimony, I would 
be glad to answer any questions that you or other members of 
the subcommittee may have.

                        Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill S. 883 as ordered reported, are shown as follows 
(existing law proposed to be omitted is enclosed in black 
brackets, new matter is printed in italic, existing law in 
which no change is proposed is shown in roman):

Public Law 99-558--Oct. 27, 1986

           *       *       *       *       *       *       *



  JOINT RESOLUTION To authorize the erection of a memorial on Federal 
    land in the District of Columbia and its environs to honor the 
 estimated five thousand courageous slaves and free black persons who 
 served as soldiers and sailors or provided civilian assistance during 
 the American Revolution and to honor the countless black men, women, 
 and children who ran away from slavery or filed petitions with courts 
                and legislatures seeking their freedom.

    [Resolved by the Senate and House of Representatives of the 
United States of America in Congress assembled,

                       Authorization of Memorial

    Section 1. The Black Revolutionary War Patriots Foundation 
is authorized to establish a memorial on Federal land in the 
District of Columbia and its environs to honor the estimated 
five thousand courageous slaves and free black persons who 
served as soldiers and sailors or provided civilian assistance 
during the American Revolution and to honor the countless black 
men, women, and children who ran away from slavery or filed 
petitions with courts and legislatures seeking their freedom. 
Such memorial shall be established in accordance with the 
provisions of H.R. 4378, as approved by the House of 
Representative on September 29, 1986.

                                Funding

    Sec. 2. The Black Revolutionary War Patriots Foundation 
shall establish the memorial with non-Federal funds.]

Public Law 100-265--Mar. 25, 1988

           *       *       *       *       *       *       *



JOINT RESOLUTION Approving the location of the Black Revolutionary War 
                           Patriots Memorial.

    [[Whereas section 6(a) of the Act entitled ``An Act to 
provide standards for placement of commemorative works on 
certain Federal lands in the District of Columbia and its 
environs, and for other purposes'', approved November 14, 1986 
(100 Stat. 3650, 3651, provides that the location of a 
commemorative work in the area described therein as area I 
shall be deemed disapproved unless, not later than one hundred 
and fifty days after the Secretary of the Interior or the 
Administrator of General Services notifies the Congress of his 
determination that the commemorative work should be located in 
area I, the location is approved by law;
    Whereas the joint resolution approved October 27, 1986 (100 
Stat. 31441, authorizes the Black Revolutionary War Patriots 
Foundation to establish a memorial on Federal land in the 
District of Columbia and its environs to honor the estimated 
five thousand courageous slaves and free black persons who 
served as soldiers and sailors or provided civilian assistance 
during the American Revolution and to honor the countless black 
men, women, and children who ran away from slavery or filed 
petitions with courts and legislatures seeking their freedom; 
and
    Whereas the Secretary of the Interior has notified the 
Congress of his determination that the memorial authorized by 
the said joint resolution approved October 27, 1986, should be 
located in area I:
    Now, therefore, be it
    Resolved by the Senate and House of Representatives of the 
United States of America in Congress assembled, That the 
location of a commemorative work to honor the slaves and free 
black persons who served as soldiers and sailors or provided 
civilian assistance during the American Revolution and to honor 
the black men, women, and children who ran away from slavery or 
filed petitions with courts and legislatures seeking their 
freedom, authorized by the joint resolution approved October 
27,1986 (100 Stat. 31441, in the area described in the Act 
approved November 14, 1986 (100 Stat. 36501, as area I, is 
hereby approved.]