Questions have also been raised as to whether S. 790 imposes a "tax." It is the view of the committee that S. 790 does not impose a tax, but a "user charge" similar to those recovering the costs of Federal hydropower projects, water supply projects, or recreational developments. It is not a revenue measure, but a charge in return for a service. Its cost is based on the cost of making the service available, and therefore is not analogous to a general tax. Its scope is limited to a percentage of the costs on the inland waterways operated and maintained by the Federal Government. Those who don't receive the service, don't pay.

The Congressional Research Service examined constitutional arguments against S. 790 advanced by the waterways industry. The Service concluded: "While no definitive determination can be made as to the constitutionality of this legislation other than by a judicial body, the weight of these cases (cited by the waterways industry) would appear to support the validity of S. 790."

Section 304 makes any commercial user of the inland waterways that fails to pay a required user charge subject to a civil fine of up to $5,000 a day, plus a prohibition against the use of any Federally operated and maintained lock during the period of violation.

Section 305 requires the Secretary of Transportation, in cooperation with the Secretary of Army, to submit to Congress by October 1, 1982, 3 years after the date the user charges become effective, a report on the implementation of section 4 to provide the Congress with the information it would need to make a possible midcourse correction, if appropriate. The Committee believes this is an important section that assures reasonable implementation of user charges.

This examination will cover the impacts, if any, on the commercial users of the waterways and the consumers of goods that are capable of being shipped on the inland waterways, and the impacts, if any, in a regional or national basis. The study will analyze the effectiveness of user charges in fostering a more balanced national transportation system, and the effectiveness of user charges in promoting more efficient public investment, balanced use of water resources, and reliance on the private sector.

Section 306 automatically reduces the user charges collected under this act by the amount of any fuel tax or other special tax imposed on the commercial barge companies using the inland waterway. This would provide automatic assurance against double charges should the Congress determine at a later date that a fuel tax on barges is appropriate.

LOCKS AND DAM 26

Section 307 authorizes the reconstruction of Locks and Dam 26 on the Mississippi River at Atlton, Ill., by replacing it with a new dam and a single, 1,200foot lock, with contingencies for a second lock, at an estimated cost of $421 million.

The existing Locks and Dam 26 is located about 18 miles upstream from St. Louis, Mo., and serves as a key element in the Nation's inland waterway system. It is situated at a central location in the inland navigation system: All waterborne commerce shipped between the Ohio River, the lower Mississippi River, the Missouri River, and the Gulf Intracoastal Waterway and the upper Mississippi River or the Illinois River must pass through these locks.

The present structure, completed in 1938, has two lock chambers: One 600 feet long and the other 360 feet long. Major problems are currently associated with this structure, centered on its deteriorating conditions and its capacity in relation to future traffic growth on the river. The structure has experienced settlement and some loss of foundation material.

While the facility is not in danger of collapse, the costs of maintenance are growing. River traffic at Locks and Dam 26 reached about 53 million tons in 1974, and is expected, by the Corps of Engineers, to reach the project's estimated physical capacity of 73 million tons in the mid-1980's. Traffic delays are expected to increase significantly as capacity is approached. But the committee believes that reconstruction, which will take 8 to 10 years, can be achieved, if started now, before the capacity of the existing site is reached. The Department of Transportation, assuming a continued trend to larger, more efficient barges, and operational improvements, estimates capacity at the present locks "prudently in the range of 75-85 million tons per year * * * It seems likely that the capacity of a single 1,200-lock in the new dam is well in excess of 100 million tons per year."

The Corps of Engineers has reviewed this problem for many years. It studied the option of rehabilitating the existing structure. It examined reconstruction with a variety of sites and locations. The solution recommended by the Chief of Engineers and approved by the committee was chosen over rehabilitation of the existing facility, which utilized a scheme of a canal and new temporary lock on the Missouri shore.

1 Previously stated BCR was 3.9. This was reduced by inclusion of local transportation costs, revision of projections and updated prices. In order to make all costs comparable we have added local haulage of grain to the waters edge which had not been previously included. In addition, projections were revised as part of the review process, for coal and petroleum to reflect the current energy situation.

The committee recognizes that there has been much discussion on what form of corrective action should be undertaken. There was opposition to the 18-foot sill depth of the new proposal, which was viewed as a first step toward a 12-foot channel on the Upper Mississippi. It was argued that this will result in irreparable harm to the Upper Mississippi aquatic environment. The railroad industry has objected to the economics, especially as it applies to the loss of railway traffic. Committee members directed the General Accounting Office to make an independent report on the possibility of rehabilitation in lieu of new construction.

The railroad industry strongly opposed reconstruction of Locks and Dam 26, as leading eventually to an entire reconstruction and expansion of the Upper Mississippi system, and argued that it would potentially divert hundreds of millions of dollars in potential rail revenues to the "free" waterways. Environmentalists argued that Locks and Dam 26 would be the opening wedge not only to a rebuilding of the Upper Mississippi facilities but to its deepening, vastly increasing traffic and pollution on the river, whch is currently mantained at a depth of 9 feet.

In a March 1977 report to the Committee on Environment and Public Works, the Department of Transportation said:

"The impact of the proposed single 1200-foot lock on railroad revenues does not appear to be significant. A single 1200-foot lock at Alton, Ill., will not cause significant diversion of existing rail traffic to the waterways."

The committee finds that proposals recommended by the Chief of Engineers appear to provide a logical approach to relieve the concerns for increased waterway

depth, environmental impacts, and bulk commodity transportation economics. For example, the corps is directed to replace and manage at Federal expense, the wildlife habitat that will be inundated as a result of the construction of the project, on an acre for acre basis, in Missouri and Illinois. The corps is also authorized to provide project-related recreation development at Ellis Island, Mo., and include facilities such as roads, parking lots, walks, picnic areas, a boat launching ramp, and a beach. The estimated cost is $4 million, of which the State of Missouri will provide half the funds. These lands will be administered in accordance with the provisions of the Federal Water Project Recreation Act.

The Mississippi River channel above its confluence with the Illinois River is established at no greater than nine feet, and no Federal official is authorized to study the feasibility of deepening the navigation channels in the Minnesota River, the Black River, or the Saint Croix River unless specifically authorized by a future act of Congress.

With these safeguards, the committee believes the immediate reconstruction of Locks and Dam 26 is in the national interest.

CONSTRUCTION, REPAIR, AND PRESERVATION OF CERTAIN PUBLIC WORKS ON RIVERS AND HARBORS

The PRESIDING OFFICER. Under the previous order, the Senate will proceed to the consideration of Calendar No. 165, which the clerk will state by title.

The legislative clerk reads as follows:

A bill (S. 1529) authorizing the construction, repair, and preservation of certain public works on rivers and harbors for navigation, flood control, and for other purposes.

The PRESIDING OFFICER. Is there objection to the present consideration of the bill?

There being no objection, the Senate proceeded to consider the bill. Mr. GRAVEL. Mr. President, may we have order?

The PRESIDING OFFICER. The Senator will suspend until we have some order in the Chamber. The Chair asks all who are conversing please to remove themselves from the Chamber. The Senator will not proceed until order has been restored in the Chamber.

The Senator from Alaska is recognized.

Mr. GRAVEL. Mr. President, first, I should like to say that we shall go through a laying down of the statements tonight and shall not engage in any debate on the subject.

Two, there will not be any votes on this bill this evening.

I ask unanimous consent that, on tomorrow, when the bill is taken up again, Senator Domenici or I be recognized so we may open up the formal debate or offer amendments if we so desire.

The PRESIDING OFFICER. Is the Senator's request that, immediately following morning business, the two Senators be recognized?

Mr. DOMENICI. That is correct.

Mr. STEVENSON. Reserving to right to object, Mr. President, the distinguished majority leader is on the floor. I wonder, before we agree to such an order for the Senator from Alaska, whether he can tell the Senate when we are coming in tomorrow?

Mr. ROBERT C. BYRD. Yes; the Senate will come in at 10 o'clock and resume consideration of this measure at about 10:30.

Mr. STEVENSON. Mr. President, I know some Members of the Senate have a meeting with the President at 10 in the morning. I should not want, speaking for myself, to be prejudiced by such an order. If it is the

understanding that the Senator from Alaska and the Senator from New Mexico will be recognized when this bill is taken up tomorrow morning, but that there will be no amendments offered or voted on before 10:45, let us say, I shall have no objection.

Mr. GRAVEL. I think I can assure my colleague that there will be no votes before 10:45, or probably until in the afternoon. The first thing we shall do upon the return of the Senators is attempt to negotiate, if possible, a time limit. I know that the matters involved in this measure are of some note and will certainly take several hours.

Mr. ROBERT C. BYRD. I think I should revise my statement by saying that the Senate can come in at 9:30 tomorrow and resume consideration of this measure at 10. As the Senator has indicated, I do not foresee any votes occurring during the first hour and a half.

Mr. GRAVEL. We can make that assurance, that there will be no votes until 11 a.m. or after, for certain.

Mr. STEVENSON. Mr. President, that is not my only concern. Is it planned to make opening statements tonight?

Mr. GRAVEL. No; our plan is simply to file opening statements tonight and not make them. Then, tomorrow, we can begin discussing amendments.

Mr. ROBERT C. BYRD. Let me put it in the form of a unanimousconsent request.

Mr. GRAVEL. If the Senator will yield, I have a unanimous-consent request at the desk right now and the Senator from Illinois has a reservation on it.

Mr. ROBERT C. BYRD. I understand, but let me proceed in this way.

ORDER FOR SENATE TO RECESS TODAY UNTIL 9:30 A.M. TOMORROW

Mr. ROBERT C. BYRD. Mr. President, I ask unanimous consent that, when the Senate completes its business today, it stand in recess until the hour of 9:30 a.m. tomorrow.

The PRESIDING OFFICER. Without objection, it is so ordered.

REQUEST THAT SENATE RESUME CONSIDERATION OF S. 1529 AT 10 A.M.

TOMORROW

Mr. ROBERT C. BYRD. Mr. President, I ask unanimous consent that, at the hour of 10 a.m. tomorrow, the Senate resume consideration of the pending measure, S. 1529.

Mr. GRAVEL. The unanimous-consent request that I have is that at 10 o'clock, either Senator Domenici or I may be recognized to take up the measure, call-up amendments, or whatever we decide to do. But this is a guarantee, ironclad, from us that there will be no votes before 11 a.m. I cannot imagine that there will be any even at 11. I think it is a matter of our getting some seasoning on the issue and finding out where we are.

Mr. STEVENSON. May we go one step further and have the Senator assure me and others that not only will there be no votes before 11 o'clock, but we will not be foreclosed any opportunity to offer amendments or motions to table or other such motions to any amendments then pending at 11 o'clock?

Mr. GRAVEL. Prior to 11 o'clock?

I would make that part of my unanimous-consent request.

Mr. BAKER. Mr. President, will the Senator put that in the unanimous-consent request? Otherwise, the Senator from Illinois might also determine that there would be prejudice to his right to make any motion, or to make any amendment, or substitute, or other parliamentary device, to any measure that may be considered before 11 o'clock.

I hope that is not his request because I can think of circumstances. that could be disposed of before 11 o'clock. I would hate to think they were tentative until that time.

Mr. DOMENICI. Mr. President, might I offer this to the Senator from Illinois ?

Mr. GRAVEL. I yield.

Mr. DOMENICI. I think he knows the general subject matter. From my standpoint, so long as the principal request that Senator Gravel and I be recognized in the morning when we convene, I think we could agree for ourselves that under such recognition we will not offer an amendment until the hour he has requested.

I do not know what we will do in the meantime, but I have no desire to do that without the Senator being here, if that is what he is talking about.

Mr. GRAVEL. I hope we will not restrict it to an amendment. We might be able to take up minor amendments. There is no reason to strap ourselves like that.

If I can state it this way, I ask unanimous consent that Senator Domenici or I be recognized in the morinng and I ask unanimous consent that no vote occur before 12 o'clock.

Mr. LONG. Mr. President, reserving the right to object, I feel we should not make that at this time. I do not see any reason why those who have amendments to offer and those who have differences of opinion cannot accommodate one another and work out an arrangement where everybody has his day in court and his chance to state his case and explain his side of the argument and then vote.

I believe we would best proceed in that fashion. I do not see that the Senator is going to have any difficulty as manager of the bill getting recognition tomorrow and I do not think it is necessary to have unanimous consent.

I believe we would be best advised to go over until tomorrow and, as far as the Senator from Illinois is concerned, if he cannot be on the floor, I will be here to protect his rights. So that we just proceed to do business as usual in the regular order. We do not need unanimous

consent.

Mr. GRAVEL. I would not disagree with that approach.

Mr. RANDOLPH. Mr. President, reserving the right to object, and I, of course, will not object.

It is my understanding from the able chairman of the Subcommittee on Water Resources (Mr. Gravel) that we will place our opening remarks in the Record this evening but that there will be no discussion of the provisions of the measure or amendments. Feelings, we know, are intense on some matters on which debate will be focused. All Members of the Senate can be assured that there will be no legislative legerdemain by the managers of this important measure, Sen