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                                                       Calendar No. 533
111th Congress                                                   Report
                                 SENATE
 2d Session                                                     111-263
======================================================================
 
                     NATIONAL LIBERTY MEMORIAL ACT

                                _______
                                

                August 15, 2010.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                         [To accompany S. 2738]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 2738) 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 with amendments and recommends that the bill, 
as amended, do pass.
    The amendments are as follows:
    1. On page 1, strike lines 3 through 5.
    2. On page 2, strike line 1 and insert the following:

SECTION 1. FINDING.

    3. On page 2, line 7, strike ``3'' and insert ``2''.
    4. On page 2, strike line 14 and insert the following: 869/
86501B and dated June 24, 2003.
    5. On page 2, line 21, strike ``4(a)'' and insert ``3(a)''.
    6. On page 2, strike line 22 and insert the following:

SEC. 3. MEMORIAL AUTHORIZATION.

    7. On page 3, line 10, strike ``5'' and insert ``4''.

                                Purpose

    The purpose of S. 2738 is to authorize the National Mall 
Liberty Fund D.C., a non-profit organization based in the 
District of Columbia, 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 (statues, monuments, sculptures, memorials, 
etc.) on Federal land in the District of Columbia. In general, 
the Act requires that a private entity wishing to construct a 
memorial must first be authorized by Congress. The entity is 
then required to raise all of the funds necessary for the 
commemorative work, with an extra 10 percent to be used to 
offset maintenance costs. Before receiving a construction 
permit, the sponsoring entity must receive site and design 
approvals from the Secretary of the Interior, the Commission of 
Fine Arts, and the National Capital Planning Commission.
    If a memorial is proposed to be located within the 
monumental core area of the District of Columbia, the Secretary 
of the Interior is required to make a finding that ``the 
subject of the commemorative work is of preeminent historical 
and lasting significance to the United States.'' If the 
Secretary makes that determination, then Congress must enact a 
joint resolution approving the location of the commemorative 
work within the monumental core area.
    In 2003 Congress amended the Commemorative Works Act to 
provide that no new commemorative works could be located within 
an area designated as the Reserve, essentially the cross-axis 
of the National Mall, running from the Capitol to the Lincoln 
Memorial, and from the White House to the Jefferson Memorial, 
including the land south of Independence Avenue between the 
Potomac River and the Tidal Basin.
    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.
    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. 2738 would authorize a new non-profit organization, 
National Mall Liberty Fund D.C., to construct a commemorative 
work honoring the same individuals as proposed by the original 
Black Revolutionary War Patriots Memorial.

                          Legislative History

    S. 2738 was introduced by Senators Dodd and Grassley 
November 5, 2009. The Subcommittee on National Parks held a 
hearing on the bill on December 3, 2009. The Committee on 
Energy and Natural Resources considered the bill and adopted 
amendments at its business meeting on June 16, 2010. The 
Committee further modified the amendments and ordered S. 2738 
favorably reported, as amended, at its business meeting on June 
21, 2010.

                        Committee Recommendation

    The Committee on Energy and Natural Resources, in open 
business session on June 21, 2010, by a voice vote of a quorum 
present, recommends that the Senate pass S. 2738, if amended as 
described herein.

                          Committee Amendments

    During the consideration of S. 2738, the Committee adopted 
amendments that deleted the bill's short title, made several 
conforming changes to the bill, and corrected a map reference.

                      Section-by-Section Analysis

    Section 1 contains a Congressional finding that subject 
matter of the proposed memorial--the contributions of free 
persons and slaves who fought during the American Revolution--
were of preeminent historical and lasting significance, as 
required under the Commemorative Works Act.
    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.
    Section 4 repeals two laws for 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. 2738--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. 2738 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 would 
apply to the legislation. However, CBO estimates that the net 
effect on the budget of enacting the legislation would be 
insignificant in any year.
    S. 2738 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.
    S. 2738 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 deposit in the Treasury 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.
    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. 2738.
    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. 2738, as ordered reported.

                   Congressionally Directed Spending

    S. 2738, 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 
December 3, 2009 Subcommittee hearing on S. 2738 follows:

   Statement of Katherine H. Stevenson, Assistant Director, Business 
      Services, 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. 2738, 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. 2738 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. We 
also recommend that one technical correction be made to a map 
reference in the bill.
    The bill would authorize 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 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 expired.
    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 
erected on the most appropriate sites and are of a caliber of 
design that is worthy of their historically significant 
subjects. The Act was amended in 2003 to, among other things, 
provide for establishment of a Reserve where no additional 
memorials may be located.
    While S. 2738 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-selecting Area I as the site for this memorial.
    Area I is located within the Monumental Core of the 
Nation's Capital extending around the Capitol Reflecting Pool 
to the eastern boundary of Arlington National Cemetery and 
along the Virginia shoreline. Area I excludes the Reserve, the 
great cross-axis of the Mall, which generally extends from the 
United States Capitol to the Lincoln Memorial, and from the 
White House to the Jefferson Memorial. Congress, in the 
Commemorative Works Act, reserved Area I for subjects 
determined to be of preeminent and lasting historic 
significance to the Nation and it established a process for 
making this determination which has worked well for over 20 
years. Through this process, 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 recommends it to Congress. If Congress agrees 
with the recommendation, it enacts a law within 150 days 
approving the location. As currently written, S. 2738 bypasses 
this important process.
    Following the Commemorative Works Act, in the Department's 
view, would not hinder the Liberty Memorial Foundation in its 
ability to establish this memorial. In fact, if it obtains an 
Area I designation through this process, it would be granted an 
additional seven years to complete the memorial, for a total of 
14 years. This change was made by Congress when it amended the 
Commemorative Works Act in 2003, and as a result sponsors no 
longer need to fear that seeking an Area I designation might 
cost them their authority to establish the memorial at all.
    We also would note out that S. 2738 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 
expire before completion. The Department recommends that the 
bill be amended to clarify the disposition of these funds.
    The Department also notes that the bill references the 1986 
map, which Congress amended in 2003 when it changed the 
boundaries of Area I and created the Reserve. The 1986 map is 
no longer valid. We recommend that the bill be amended to 
reference the revised map, numbered 869/86501B and dated June 
24, 2003.
    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 Act S. 2738 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):

 A. AN ACT 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.


             (Approved October 27, 1986, Public Law 99-558)

    [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.]

           *       *       *       *       *       *       *


 B. Joint Resolution approving the location of the Black Revolutionary 
                         War Patriots Memorial


             (Approved March 25, 1988; Public Law 100-265)

    [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, 36511, 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.]

           *       *       *       *       *       *       *