II

Calendar No. 926

106TH CONGRESS

2D SESSION S. 2331

[Report No. 106–477]

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, South Carolina.

IN THE SENATE OF THE UNITED STATES

MARCH 30, 2000

Mr. HOLLINGS introduced the following bill; which was read twice and

referred to the Committee on Energy and Natural Resources

OCTOBER 3 (legislative day, SEPTEMBER 22), 2000

Reported by Mr. MURKOWSKI, with an amendment and an amendment to the

title

[Strike out all after the enacting clause and insert the part printed in italic]

A BILL

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, South Carolina.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
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S 2331 RS

1 SECTION 1. RECALCULATION OF FRANCHISE FEE.

2 (a) DEFINITIONS.—In this section:

3 (1) FRANCHISEE.—The term ‘‘franchisee’’

4 means Fort Sumter Tours, Inc., a concessioner pro5 viding service to Fort Sumter National Monument,

6 South Carolina.

7 (2) SECRETARY.—The term ‘‘Secretary’’ means

8 the Secretary of the Interior.

9 (b) RECALCULATION OF FRANCHISE FEE.—Not later

10 than 30 days after the date of enactment of this Act, the

11 Secretary shall—

12 (1) recalculate the amount (if any) of the fran13 chise fee owed by the franchisee; and

14 (2) notify the franchisee of the recalculated

15 amount.

16 (c) ARBITRATION.—

17 (1) IN GENERAL.—If the amount of the fran18 chise fee as recalculated under subsection (a) is not

19 acceptable to the franchisee—

20 (A) the franchisee, not later than 5 days

21 after receipt of notification under subsection

22 (b)(2), shall so notify the Secretary; and

23 (B) the amount of the franchise fee owed

24 shall be determined through binding arbitration

25 that provides for a trial-type hearing that—
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S 2331 RS

1 (i) includes the opportunity to call

2 and cross-examine witnesses; and

3 (ii) is subject to supervision by the

4 United States District Court for the Dis5 trict of Columbia in accordance with the

6 title 9, United States Code.

7 (2) SELECTION OF ARBITRATOR OR ARBITRA8 TION PANEL.—

9 (A) AGREEMENT ON ARBITRATOR.—For a

10 period of not more than 30 days after the

11 franchisee gives notification under paragraph

12 (1)(A), the Secretary and the franchisee shall

13 attempt to agree on the selection of an arbi14 trator to conduct the arbitration.

15 (B) PANEL.—If at any time the Secretary

16 or the franchisee declares that the parties are

17 unable to agree on an arbitrator—

18 (i) the Secretary and the franchisee

19 shall each select an arbitrator;

20 (ii) not later than 10 days after 2 ar21 bitrators are selected under clause (i), the

22 2 arbitrators shall select a third arbitrator;

23 and

24 (iii) the 3 arbitrators shall conduct

25 the arbitration.
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S 2331 RS

1 (3) COMMENCEMENT AND COMPLETION.—An

2 arbitration proceeding under paragraph (1)—

3 (A) shall commence not later than 30 days

4 after the date on which an arbitrator or arbitra5 tion panel is selected under paragraph (2); and

6 (B) shall be completed with a decision ren7 dered not later than 240 days after that date.

8 (4) APPLICABLE LAW.—

9 (A) RELEVANT TIME PERIOD.—The law

10 applicable to the recalculation of the franchise

11 fee under this subsection shall be the law appli12 cable to franchise fee determinations in effect

13 at the beginning of the period for which the

14 franchise fee is payable.

15 (B) PREVIOUS DECISIONS.—No previous

16 judicial decision regarding the franchise fee dis17 pute that is the subject of arbitration under

18 this subsection may be introduced in evidence

19 or considered by the arbitrator or arbitration

20 panel for any purpose.

21 (5) FEES AND COSTS.—If the franchisee is the

22 prevailing party in binding arbitration, the arbi23 trator or arbitration panel shall award the franchisee

24 reasonable attorney’s fees and costs for all pro-
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1 ceedings involving the disputed franchise fee con2 sistent with—

3 (A) section 504 of title 5, United States

4 Code; and

5 (B) section 2412 of title 28, United States

6 Code.

7 (d) BIDS AND PROPOSALS.—Until such date as any

8 arbitration under this Act is completed and is no longer

9 subject to appeal, the Secretary—

10 (1) shall not solicit or accept a bid or proposal

11 for any contract for passenger service to Fort Sum12 ter National Monument; and

13 (2) shall offer to the franchisee annual exten14 sions of the concessions contract in effect on the

15 date of enactment of this Act.

16 SECTION 1. ARBITRATION REQUIREMENT.

17 The Secretary of the Interior (in this Act referred to

18 as the ‘‘Secretary’’) shall, upon the request of Fort Sumter

19 Tours, Inc. (in this Act referred to as the ‘‘Concessioner’’),

20 agree to binding arbitration to determine the franchise fee

21 payable under the contract executed on June 13, 1986, by

22 the Concessioner and the National Park Service, under

23 which the Concessioner provides passenger boat service to

24 Fort Sumter National Monument in Charleston Harbor,

25 South Carolina (in this Act referred to as ‘‘the Contract’’).
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1 SEC. 2. APPOINTMENT OF THE ARBITRATOR.

2 (a) MUTUAL AGREEMENT.—Not later than 90 days

3 after the date of enactment of this Act, The Secretary and

4 the Concessioner shall jointly select a single arbitrator to

5 conduct the arbitration under this Act.

6 (b) FAILURE TO AGREE.—If the Secretary and the

7 concessioner are unable to agree on the selection of a single

8 arbitrator within 90 days after the date of enactment of

9 this Act, within 30 days thereafter the Secretary and the

10 Concessioner shall each select an arbitrator, the two arbitra11 tors selected by the Secretary and the Concessioner shall

12 jointly select a third arbitrator, and the three arbitrators

13 shall jointly conduct the arbitration.

14 (c) QUALIFICATIONS.—Any arbitrator selected under

15 either subsection (a) or subsection (b) shall be a neutral who

16 meets the criteria of section 573 of title 5, United States

17 Code.

18 (d) PAYMENT OF EXPENSES.—The Secretary and the

19 Concessioner shall share equally the expenses of the arbitra20 tion.

21 (e) DEFINITION.—As used in this Act, the term ‘‘arbi22 trator’’ includes either a single arbitrator selected under

23 subsection (a) or a three-member panel of arbitrators se24 lected under (b).
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1 SEC. 3. SCOPE OF THE ARBITRATION.

2 (a) SOLE ISSUE TO BE DECIDED.—The arbitrator

3 shall determine—

4 (1) the appropriate amount of the franchise fee

5 under the Contract for the period from June 13, 1991,

6 through December 31, 2000, in accordance with the

7 terms of the Contract; and

8 (2) any interest or penalties on the amount owed

9 under paragraph (1).

10 (b) DE NOVO DECISION.—The arbitrator shall not be

11 bound by any prior determination of the appropriate

12 amount of the fee by the Secretary.

13 (C) BASIS FOR DECISION.—The arbitrator shall deter14 mine the appropriate amount of the fee based upon the law

15 in effect on the effective date of the Contract and the terms

16 of section 9 of the Contract.

17 SEC. 4. EFFECT OF DECISION.

18 (a) RETROACTIVE EFFECT.—The amount of the fee de19 termined by the arbitrator under section 3(a) shall be retro20 active to June 13, 1991.

21 (b) NO FURTHER REVIEW.—Notwithstanding sub22 chapter IV of title 5, United States Code (commonly known

23 as the Administrative Dispute Resolution Act), the decision

24 of the arbitrator shall be final and conclusive upon the Sec25 retary and the Concessioner and shall not be subject to judi26 cial review.
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1 SEC. 5. GENERAL AUTHORITY.

2 Except to the extent inconsistent with this Act, the ar3 bitration under this Act shall be conducted in accordance

4 with subchapter IV of title 5, United States Code.

5 SEC. 6. ENFORCEMENT.

6 A party aggrieved by the alleged failure, neglect, or

7 refusal of another to arbitrate under this Act, or by any

8 unreasonable delay in the appointment of the arbitrator or

9 the conduct of the arbitration, may petition the United

10 States District Court for the District of South Carolina or

11 the United States District Court for the District of Colum12 bia for an order directing that the arbitration proceed in

13 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.’’.

Calendar No. 926

106TH CONGRESS

2D SESSION S. 2331

[Report No. 106–477]

A BILL

To direct the Secretary of the Interior to recalculate the franchise fee owed by Fort Sumter

Tours, Inc., a concessioner providing service toFort Sumter National Monument, South Carolina.

OCTOBER 3 (legislative day, SEPTEMBER 22), 2000

Reported with an amendment and an amendment to the

title