[Senate Report 113-55]
[From the U.S. Government Publishing Office]
Calendar No. 109
113th Congress Report
SENATE
1st Session 113-55
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NORTHERN MARIANA ISLANDS
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June 27, 2013.--Ordered to be printed
_______
Mr. Wyden, from the Committee on Energy and Natural Resources,
submitted the following
R E P O R T
[To accompany S. 256]
The Committee on Energy and Natural Resources, to which was
referred the bill (S. 256) to amend Public Law 93-435 with
respect to the Northern Mariana Islands, providing parity with
Guam, the Virgin Islands, and American Samoa, having considered
the same, reports favorably thereon with an amendment and
recommends that the bill, as amended, do pass.
The amendment is as follows:
At the end of the bill, add the following:
SEC. 2. ADJUSTMENT OF SCHEDULED WAGE INCREASES IN THE COMMONWEALTH OF
THE NORTHERN MARIANA ISLANDS.
Section 8103(b)(1)(B) of the Fair Minimum Wage Act of 2007 (29 U.S.C.
206 note; Public Law 110-28) is amended by striking ``2011'' and
inserting ``2011, 2013, and 2015''.
Purpose
The purpose of S. 256 is to convey to the government of the
Commonwealth of the Northern Mariana Islands (CNMI) the
submerged lands surrounding the islands extending three
geographical miles outward from the coastline.
Background and Need
The Northern Mariana Islands are an archipelago of fourteen
islands between the Philippines and Japan and extending north
of Guam. The United States captured the islands in World War II
and in 1947 they became a district of the U.S.-administered,
United Nations Trust Territory of the Pacific Islands. In
accordance with the terms of the U.N. Trusteeship Agreement,
the people of the Northern Mariana Islands expressed their
desire for their future political status which was to join in
political union with the U.S. Following bilateral negotiations,
the Covenant to Establish a Commonwealth of the Northern
Mariana Islands in Political Union with the United States of
America (the ``Covenant'') was approved in a U.N.-observed
plebiscite in the Mariana Islands and by the U.S. Congress with
the enactment of Public Law 94-241 in 1976.
The Covenant defined the relationship between the U.S. and
the CNMI and provided for the establishment of self-government
under a local constitution, but under the sovereignty of the
U.S. The Covenant also extended U.S. citizenship to the
islands' residents. Article VIII provided for the transfer of
real property from the Trust Territory Government to the new
CNMI government, but disagreement arose regarding the status of
submerged lands.
In 1999, the CNMI filed a quiet title suit against the U.S.
in the U.S. District Court for the Northern Mariana Islands,
seeking a ruling that the CNMI holds title to the submerged
lands underlying the internal waters, archipelagic waters, and
territorial waters adjacent to the Northern Mariana Islands.
The district court granted summary judgment in favor of the
United States, based on the paramountcy doctrine. As
established by the Supreme Court in United States v.
California, 332 U.S. 19 (1947), and subsequent cases, the
paramountcy doctrine holds that the United States possesses
paramount rights over seaward submerged lands, as a function of
national external sovereignty.
On appeal, the U.S. Court of Appeals for the Ninth Circuit
Court of Appeals affirmed the district court's judgment. CNMI
v. United States, 399 F.3d 1057 (9th Cir. 2005). The Ninth
Circuit held that the U.S. acquired paramount rights in the
submerged lands off the shores of the CNMI based on the U.S.
sovereignty over the CNMI pursuant to the Covenant. The court
recognized, however, that Congress can, and has, transferred
ownership of submerged lands to the states and other
territories. The Court specifically cited the Submerged Lands
Act, 43 U.S.C. 1301 et seq., which conveyed submerged lands up
to three geographical miles from shore to the states, and the
Territorial Submerged Lands Act, 42 U.S.C. 1705, which
transferred submerged lands to the territories of Guam, the
U.S. Virgin Islands, and American Samoa.
The Territorial Submerged Lands Act, which became law in
1974, two years before approval of the Covenant, did not
include the CNMI, and CNMI remains the only U.S. territory that
does not have title to its submerged lands. Legislation is
needed to convey to the CNMI title to its submerged lands
seaward of its coastline.
Legislative History
On October 25, 2005, during the 109th Congress, the
Committee on Energy and Natural Resources held a hearing on S.
1831, legislation that contained language along the lines of S.
256 (S. Hrg. 109-291), but no further action was taken due to
objections from the CNMI.
On February 10, 2009, during the 110th Congress, the
Delegate from the CNMI, Gregorio Kilili Sablan, introduced H.R.
934, which contained language along the lines of S. 256. It was
reported by the House Committee on Natural Resources on June
23, 2009, H. Rept. 111-176, and passed the House on July 15,
2009, by a vote of 416 to 0.
H.R. 934 was referred to the Senate Committee on Energy and
Natural Resources on July 16, 2009. The Committee held a
hearing on December 17, 2009 (S. Hrg. 111-364), and ordered
H.R. 934 favorably reported at a business meeting on May 6,
2010. However, no further action was taken on the bill during
the 111th Congress.
During the 112th Congress, the Committee held a hearing on
S. 590, introduced by Senator Bingaman and Senator Murkowski
(by request) (S. Hrg. 112-39), and the House passed similar
legislation, H.R. 670, but the Senate took no further action on
either bill.
S. 256 was introduced in the 113th Congress on February 7,
2013, by Senator Wyden and Senator Murkowski. The Committee on
Energy and Natural Resources held a hearing on April 25, 2013,
and ordered S. 256 favorably reported, as amended, at a
business meeting on May 16, 2013.
Committee Recommendation
The Committee on Energy and Natural Resources, in open
business session on May 16, 2013, by a unanimous voice vote of
a quorum present, recommends that the Senate pass S. 256, if
amended as described herein.
Committee Amendment
During its consideration of S. 256, the Committee adopted
an amendment to slow the rate of increase of the minimum wage
in the Commonwealth of the Northern Mariana Islands to mitigate
the impact of a rapid increase on the CNMI economy. The
amendment would delay parity of the CNMI minimum wage with the
national minimum wage from 2016 to 2018.
Section-by-Section Analysis
Section 1(a) amends the first section of Public Law 93-438
(48 U.S.C. 1705; commonly known as the Territorial Submerged
Lands Act), which conveys the submerged lands up to three
geographical miles seaward from the coastlines of Guam, the
Virgin Islands, and American Samoa, to the governments of those
territories, by inserting ``the Commonwealth of the Northern
Mariana Islands'' after ``Guam,'' every place it appears. The
effect of the amendment is to convey to the government of the
CNMI the lands covered by tidal waters up to three geographical
miles from the coastline of the CNMI, on the same terms as
submerged lands were conveyed to Guam, the Virgin Islands, and
American Samoa.
Subsection (b) provides that each reference of the date of
enactment of Public Law 93-435 shall also be considered as a
reference to the date of enactment of S. 256.
Section 2 amends section 8103 of Public Law 110-28
(b)(1)(B) (29 U.S.C. 206 note; commonly known as the Fair
Minimum Wage Act), which phases in application of the national
minimum wage to the Commonwealth of the Northern Mariana
Islands, by striking ``2011'' and inserting ``2011, 2013, and
2015''. The effect of this change is to prevent the minimum
wage in the Commonwealth of the Northern Mariana Islands from
increasing in 2013 and 2015 as originally required under the
Fair Minimum Wage Act and, instead, delaying parity between the
CNMI minimum wage and the national minimum wage from 2016,
under current law, to 2018.
Cost and Budgetary Consideration
The following estimate of costs of this measure has been
provided by the Congressional Budget Office.
S. 256--A bill to amend Public Law 93-435 with respect to the Northern
Mariana Islands, providing parity with Guam, the Virgin
Islands, and American Samoa
CBO estimates that enacting S. 256 would have no
significant effect on the federal budget. The bill would convey
ownership of submerged lands to the Commonwealth of the
Northern Mariana Islands (CNMI) from the mean high tide seaward
to the point that is three geographical miles from its coast
line. The legislation also would include CNMI among the islands
where the United States may establish a naval defensive
perimeter. Finally, S. 256 would amend the process for changing
the minimum wage in American Samoa and CNMI.
Based on information from the Department of the Interior,
CBO estimates that implementing S. 256 would have no
significant cost to the federal government. Enacting the bill
would not affect direct spending or revenues; therefore, pay-
as-you-go procedures do not apply.
S. 256 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
On May 2, 2013, CBO transmitted a cost estimate for H.R.
573, a bill to amend Public Law 93-435 with respect to the
Northern Mariana Islands, providing parity with Guam, the
Virgin Islands, and American Samoa, as ordered reported by the
House Committee on Natural Resources on April 24, 2013. The two
pieces of legislation are similar, and the CBO cost estimates
are the same.
The CBO staff contact for this estimate is Matthew
Pickford. 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. 256.
The bill is not a regulatory measure in the sense of
imposing Government-established standards or significant
economic responsibilities on private individuals or businesses.
No personal information would be collected by the Federal
government. Therefore, there would be no impact on personal
privacy.
Little, if any, additional paperwork would be required by
the Federal government from the enactment of S. 256.
Congressionally Directed Spending
S. 256, as 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 Department of the Interior at
the April 25, 2013, hearing on S. 256 follows:
Statement for the Record of the Department of the Interior
Mr. Chairman and members of the Committee, the Department
of the Interior is pleased to provide this statement for the
record in support of enactment of legislation that would convey
the three geographical miles of submerged lands adjacent to the
Northern Mariana Islands to the Government of the Northern
Mariana Islands. The Administration would strongly support this
bill if amended to address the issues outlined below.
The bill is intended to give the Commonwealth of the
Northern Mariana Islands (CNMI) authority over its submerged
lands from mean high tide seaward to three geographical miles
distant from its coast lines.
It has been the position of the Federal Government that
United States submerged lands around the Northern Mariana
Islands did not transfer to the CNMI when the Covenant came
into force. This position was validated in Ninth Circuit Court
of Appeals opinion in the case of the Commonwealth of the
Northern Mariana Islands v. the United States of America. One
consequence of this decision is that CNMI law enforcement
personnel lack jurisdiction in the territorial waters
surrounding the islands of the CNMI without a grant from the
Federal Government.
At present, the CNMI is the only United States territory
that does not have title to the submerged lands in that portion
of the United States territorial sea that is three miles
distant from the coastline. It is appropriate that the CNMI be
given the same authority as her sister territories.
Second, on January 6, 2009, by presidential proclamation,
the Marianas Trench Marine National Monument was created,
including the Islands Unit, comprising the submerged lands and
waters surrounding Uracas, Maug, and Asuncion, the northernmost
islands of the CNMI. While creation of the monument is a
historic achievement, it should be remembered that the leaders
and people of the CNMI were and are these three islands' first
preservationists. They included in their 1978, plebiscite-
approved constitution the following language:
ARTICLE XIV: NATURAL RESOURCES
Section 1: Marine Resources. The marine resources in
the waters off the coast of the Commonwealth over which
the Commonwealth now or hereafter may have any
jurisdiction under United States law shall be managed,
controlled, protected and preserved by the legislature
for the benefit of the people.
Section 2: Uninhabited Islands. . . . The islands of
Maug, Uracas, Asuncion, Guguan and other islands
specified by law shall be maintained as uninhabited
places and used only for the preservation and
protection of natural resources, including but not
limited to bird, wildlife and plant species.
It is important to note that the legislature has never
taken action adverse to the preservation of these northern
islands and the waters surrounding them. The people of the CNMI
are well aware of their treasures. CNMI leaders consented to
creation of the monument because they believed that the
monument would bring Federal assets for marine surveillance,
protection, and enforcement to the northern islands that the
CNMI cannot afford.
If enacted as introduced, S. 256 would become a public law
enacted subsequent to the creation of the monument. S. 256's
amendments to the Territorial Submerged Lands Act would convey
to the CNMI the submerged lands surrounding Uracas, Maug, and
Asuncion without addressing the effect of this conveyance on
the administrative responsibilities of the Department of the
Interior and the Department of Commerce. Presidential
Proclamation 8335 assigned management responsibility of the
Marianas Trench Marine National Monument to the Secretary of
the Interior, in consultation with the Secretary of Commerce.
The proclamation further states that the ``Secretary of
Commerce shall have the primary management responsibility . . .
with respect to fishery-related activities regulated pursuant
to the Magnuson-Stevens Fishery Conservation and Management Act
(16 U.S.C. Sec. Sec. 1801 et seq.) and any other applicable
authorities.'' The proclamation provides that submerged lands
that are granted to the CNMI ``but remain controlled by the
United States under the Antiquities Act may remain part of the
monument'' for coordinated management with the CNMI. As
envisioned by the Presidential Proclamation establishing the
Marianas Trench Marine National Monument, the Administration is
proposing an amendment to ensure that the outstanding resources
in the waters surrounding the CNMI's three northernmost islands
remain protected. Thus, the Administration recommends that
language be included in S. 256 referencing the coordination of
management contemplated within the Proclamation prior to the
transfer of the submerged lands within the Islands Unit of the
monument to the CNMI. This language is intended to protect the
Islands Unit of the monument and at the same time acknowledge
the prescient and historic conservation effort of the leaders
and people of the CNMI in protecting Uracas, Maug, and
Asuncion, and their surrounding waters.
The Administration recommends that S. 256 include an
amendment to subsection (b) of section 1 of the Territorial
Submerged Lands Act, Public Law 93-435, 48 U.S.C. 1705, as
follows:
(xii) any submerged lands within the Islands Unit of
the Marianas Trench Marine National Monument unless or
until such time as the Commonwealth of the Northern
Mariana Islands enters into an agreement with the
Secretary of the Interior and the Secretary of Commerce
for the permanent protection and co-management of such
portion of the Islands Unit.
The Department of the Interior strongly supports S. 256 if
it is amended to include the legislative language provided. The
Department of the Interior looks forward to the Commonwealth of
the Northern Mariana Islands gaining rights in surrounding
submerged lands similar to those accorded her sister
territories.
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. 256, as ordered reported, are shown as follows
(new matter is printed in italic and existing law in which no
change is proposed is shown in roman):
Public Law 93-435, as amended
AN ACT To place certain submerged lands within the jurisdiction of the
governments of Guam, the Virgin Islands, and American Samoa, and for
other purposes.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That (a)
subject to valid existing rights, all right, title, and
interest of the United States in lands permanently or
periodically covered by tidal waters up to but not above the
line of mean high tide and seaward to a line three geographical
miles distant from the coastlines of the territories of Guam,
the Commonwealth of the Northern Mariana Islands, the Virgin
Islands, and American Samoa, as heretofore or hereafter
modified by accretion, erosion, and reliction, and in
artificially made, filled in, or reclaimed lands which were
formerly permanently or periodically covered by tidal waters,
are hereby conveyed to the governments of Guam, the
Commonwealth of the Northern Mariana Islands, the Virgin
Islands, and American Samoa, as the case may be, to be
administered in trust for the benefit of the people thereof.
(b) There are excepted from the transfer made by subsection
(a) hereof--
(i) all deposits of oil, gas, and other minerals, but
the term ``minerals'' shall not include coral, sand,
and gravel;
* * * * * * *
(xi) all submerged lands within the Buck Island Reef
National Monument as described in Presidential
Proclamation 3448 dated December 28, 1961.
Upon request of the Governor of Guam, the Commonwealth of the
Northern Mariana Islands, the Virgin Islands, or American
Samoa, the Secretary of the Interior may, with or without
reimbursement, and subject to the procedure specified in
subsection (c) of this section convey all right, title, and
interest of the United States in any of the lands described in
clauses (ii), (iii), (iv), (v), (vi), (vii), or (viii) of this
subsection to the government of Guam, the Commonwealth of the
Northern Mariana Islands, the Virgin Islands, or American
Samoa, as the case may be, with the concurrence of the agency
having custody thereof.
* * * * * * *
(d)(1) The Secretary of the Interior shall, not later than
sixty days after the date of enactment of this subsection,
convey to the governments of Guam, the Commonwealth of the
Northern Mariana Islands, the Virgin Islands, and American
Samoa, as the case may be, all right, title, and interest of
the United States in deposits of oil, gas, and other minerals
in the submerged lands conveyed to the government of such
territory by subsection (a) of this section.
* * * * * * *
Public Law 110-28, as amended
AN ACT Making emergency supplemental appropriations and additional
supplemental appropriations for agricultural and other emergency
assistance for the fiscal year ending September 30, 2007, and for other
purposes.
* * * * * * *
TITLE VIII--FAIR MINIMUM WAGE AND TAX RELIEF
Subtitle A--Fair Minimum Wage
SEC. 8101. SHORT TITLE.
This subtitle may be cited as the ``Fair Minimum Wage Act
of 2007''.
* * * * * * *
SEC. 8103. APPLICABILITY OF MINIMUM WAGE TO AMERICAN SAMOA AND THE
COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS.
(a) In General.--Section 6 of the Fair Labor Standards Act
of 1938 (29 U.S.C. 206) shall apply to American Samoa and the
Commonwealth of the Northern Mariana Islands.
(b) Transition.--Notwithstanding subsection (a)--
(1) the minimum wage applicable to the Commonwealth
of the Northern Mariana Islands under section 6(a)(1)
of the Fair Labor Standards Act of 1938 (29 U.S.C.
206(a)(1)) shall be--
(A) $3.55 an hour, beginning on the 60th day
after the date of enactment of this Act; and
(B) increased by $0.50 an hour (or such
lesser amount as may be necessary to equal the
minimum wage under section 6(a)(1) of such
Act), beginning 1 year after the date of
enactment of this Act and each year thereafter
until the minimum wage applicable to the
Commonwealth of the Northern Mariana Islands
under this paragraph is equal to the minimum
wage set forth in such section, except that,
beginning in 2010 and each year thereafter
(except [2011] 2011, 2013, and 2015, when there
shall be no increase), such increase shall
occur on September 30; and
(2) the minimum wage applicable to American Samoa
under section 6(a)(1) of the Fair Labor Standards Act
of 1938 (29 U.S.C. 206(a)(1)) shall be--
* * * * * * *