(S. 414, Senate floor sponsors’ amendment)
(Additions are highlighted, deletions struck out)
(Unless otherwise noted, all changes
are effective May 1, 1999)
The Ocean Shipping Reform Act of 1998 modifying The Shipping Act of 1984
(S. 414, Senate floor sponsors’ amendment)
(Additions are highlighted, deletions struck out)
(Unless otherwise noted, all changes
are effective May 1, 1999)
The purposes of this Act are--
(1) to establish a nondiscriminatory regulatory process for the common carriage of goods by water in the foreign commerce of the United States with a minimum of government intervention and regulatory costs;
(2) to provide an efficient and economic
transportation system in the ocean commerce of the United States that is,
insofar as possible, in harmony with, and responsive to, international shipping
practices; and
(3) to encourage the development of an
economically sound and efficient United States-flag liner fleet capable of
meeting national security needs; and
.
(4) to promote
the growth and development of United States exports through competitive and
efficient ocean transportation and by placing a greater reliance on the
marketplace.
As used in this Act--
(1) "agreement" means an understanding, arrangement, or association (written or oral) and any modification or cancellation thereof; but the term does not include a maritime labor agreement.
(2) "antitrust laws" means the Act of July 2, 1890 (ch. 647, 26 Stat. 209), as amended; the Act of October 15, 1914 (ch. 323, 38 Stat. 730), as amended; the Federal Trade Commission Act (38 Stat. 717), as amended; sections 73 and 74 of the Act of August 27, 1894 (28 Stat. 570), as amended; the Act of June 19, 1936 (ch. 592, 49 Stat. 1526), as amended; the Antitrust Civil Process Act (76 Stat. 548), as amended; and amendments and Acts supplementary thereto.
(3) "assessment agreement" means an agreement, whether part of a collective-bargaining agreement or negotiated separately, to the extent that it provides for the funding of collectively bargained fringe benefit obligations on other than a uniform man-hour basis, regardless of the cargo handled or type of vessel or equipment utilized.
(4) "bulk cargo" means cargo that is loaded and carried in bulk without mark or count.
(5) "Commission" means the Federal Maritime Commission.
(6) "common carrier" means a person holding itself out to the general public to provide transportation by water of passengers or cargo between the United States and a foreign country for compensation that--
(A) assumes responsibility for the transportation from the port or point of receipt to the port or point of destination, and
(B) utilizes, for all or part of that transportation, a vessel operating on the high seas or the Great Lakes between a port in the United States and a port in a foreign country, except that the term does not include a common carrier engaged in ocean transportation by ferry boat, ocean tramp, or chemical parcel-tanker. As used in this paragraph, "chemical parcel-tanker" means a vessel whose cargo-carrying capability consists of individual cargo tanks for bulk chemicals that are a permanent part of the vessel, that have segregation capability with piping systems to permit simultaneous carriage of several bulk chemical cargoes with minimum risk of cross-contamination, and that has a valid certificate of fitness under the International Maritime Organization Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk.
(7) "conference" means an association of ocean common carriers permitted, pursuant to an approved or effective agreement, to engage in concerted activity and to utilize a common tariff; but the term does not include a joint service, consortium, pooling, sailing, or transshipment arrangement.
(8) "controlled carrier" means an ocean common
carrier that is, or whose operating assets are, directly or indirectly, owned or
controlled by a government the
government under whose registry the vessels of the carrier operate;
ownership or control by a government shall be deemed to exist with respect to
any carrier if--
(A) a majority portion of the interest in the carrier is owned or controlled in any manner by that government, by any agency thereof, or by any public or private person controlled by that government; or
(B) that government has the right to appoint or disapprove the appointment of a majority of the directors, the chief operating officer, or the chief executive officer of the carrier.
(9) "deferred rebate" means a return
by a common carrier of any portion of the freight money to a shipper as a
consideration for that shipper giving all, or any portion, of its shipments to
that or any other common carrier, or for any other purpose, the payment of which
is deferred beyond the completion of the service for which it is paid, and is
made only if, during both the period for which computed and the period of
deferment, the shipper has complied with the terms of the rebate agreement or
arrangement. "deferred rebate" means a
return by a common carrier of any portion of freight money to a shipper as a
consideration for that shipper giving all, or any portion, of its shipments to
that or any other common carrier over a fixed period of time, the payment of
which is deferred beyond the completion of service for which it is paid, and is
made only if the shipper has agreed to make a further shipment or shipments with
that or any other common carrier.
(10) "fighting ship" means a vessel
used in a particular trade by an ocean common carrier or group of such carriers
for the purpose of excluding, preventing, or reducing competition, by driving
another ocean common carrier out of that trade.
(10)
(11) "forest products" means forest products
in an unfinished or semifinished state that require special handling
moving in lot sizes too large for a container, including, but not
limited to lumber in bundles, rough timber, ties, poles, piling, laminated
beams, bundled siding, bundled plywood, bundled core stock or veneers, bundled
particle or fiber boards, bundled hardwood, wood pulp in rolls, wood pulp in
unitized bales, paper board in rolls, and paper in rolls
paper and paper board in rolls or in pallet or skid-sized
sheets.
(11)
(12) "inland division" means the amount paid by a common
carrier to an inland carrier for the inland portion of through transportation
offered to the public by the common carrier.
(12)
(13) "inland portion" means the charge to the public by a
common carrier for the non-ocean portion of through transportation.
(13)
(14) "loyalty contract" means a contract with an ocean common
carrier or agreement conference, other
than a service contract or contract based upon time-volume rates, by
which a shipper obtains lower rates by committing all or a fixed portion of its
cargo to that carrier or conference agreement and the contract provides for a deferred rebate
arrangement.
(14) (15) "marine terminal operator"
means a person engaged in the United States in the business of furnishing
wharfage, dock, warehouse, or other terminal facilities in connection with a
common carrier, or in connection with a common carrier
and a water carrier subject to Subchapter II of Chapter 135 of Title 49, United
States Code.
(15)
(16) "maritime labor agreement" means a collective-bargaining
agreement between an employer subject to this Act, or group of such employers,
and a labor organization representing employees in the maritime or stevedoring
industry, or an agreement preparatory to such a collective-bargaining agreement
among members of a multi-employer bargaining group, or an agreement specifically
implementing provisions of such a collective-bargaining agreement or providing
for the formation, financing, or administration of a multiemployer bargaining
group; but the term does not include an assessment agreement.
(17) "non-vessel-operating common
carrier" means a common carrier that does not operate the vessels by which the
ocean transportation is provided, and is a shipper in its relationship with an
ocean common carrier.
(16) (18) "ocean common
carrier" means a vessel-operating common carrier.
(19) " ocean freight forwarder" means
a person in the United States that--
(A) dispatches shipments from the United States via common carriers and
books or otherwise arranges space for those shipments on behalf of shippers;
and
(B) processes the documentation or performs related activities incident
to those shipments.
(17) "ocean transportation intermediary" means an ocean freight forwarder or a non-vessel-operating common carrier. For the purposes of this paragraph, the term
(A) ‘ocean freight forwarder’ means a person that--
(i) in the United States, dispatches shipments from the United States via a common carrier and books or otherwise arranges space for those shipments on behalf of shippers; and
(ii) processes the documentation or performs related activities incident to those shipments; and
(B) ‘non-vessel-operating common carrier’ means a common carrier that does not operate the vessels by which the ocean transportation is provided, and is a shipper in its relationship with an ocean common carrier.
(18)
(21)"service contract" means a
contract between a shipper and an ocean common carrier or conference in which
the shipper makes a commitment to provide a certain minimum quantity of cargo
over a fixed time period, and the ocean common carrier or conference commits to
a certain rate or rate schedule as well as a defined service level--such as,
assured space, transit time, port rotation, or similar service features; the
contract may also specify provisions in the event of nonperformance on the part
of either party.
(19) "service contract" means a written contract, other than a bill of lading or a receipt, between one or more shippers and an individual ocean common carrier or an agreement between or among ocean common carriers in which the shipper or shippers makes a commitment to provide a certain volume or portion of cargo over a fixed time period, and the ocean common carrier or the agreement commits to a certain rate or rate schedule and a defined service level, such as assured space, transit time, port rotation, or similar service features. The contract may also specify provisions in the event of nonperformance on the part of any party."
(20)
(21)
(23) "shipper" means an owner or person for whose account the ocean
transportation is provided or the person to whom delivery is to be
made. "shipper" means:
(A) a cargo owner;
(B) the person for whose account the ocean transportation is provided;
(C) the person to whom delivery is to be made;
(D) a shippers' association; or
(E) an ocean transportation intermediary, as defined in paragraph (17)(B) of this section, that accepts responsibility for payment of all charges applicable under the tariff or service contract.
(22)
(24) "shippers' association" means a group of shippers that
consolidates or distributes freight on a nonprofit basis for the members of the
group in order to secure carload, truckload, or other volume rates or service
contracts.
(23)
(25) "through rate" means the single amount charged by a common
carrier in connection with through transportation.
(24)
(26) "through transportation" means continuous transportation
between origin and destination for which a through rate is assessed and which is
offered or performed by one or more carriers, at least one of which is a common
carrier, between a United States point or port and a foreign point or port.
(25)
(27) "United States" includes the several States, the District
of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern
Marianas, and all other United States territories and possessions.
(a) Ocean common carriers. This Act applies to agreements by or among ocean common carriers to--
(1) discuss, fix, or regulate transportation rates, including through rates, cargo space accommodations, and other conditions of service;
(2) pool or apportion traffic, revenues, earnings, or losses;
(3) allot ports or restrict or otherwise regulate the number and character of sailings between ports;
(4) limit or regulate the volume or character of cargo or passenger traffic to be carried;
(5) engage
in exclusive, preferential, or cooperative working arrangements among themselves
or with one or more marine terminal operators or non-vessel-operating
common carriers;
(6)
control, regulate, or prevent competition in international ocean transportation;
and or
(7)
regulate or prohibit their use of service contracts. discuss and agree on any matter related to service
contracts.
(b) Marine terminal operators. This Act
applies to agreements (to the extent the agreements involve ocean
transportation in the foreign commerce of the United States) among
marine terminal operators and among one or more marine terminal operators and
one or more ocean common carriers to--
(1)
discuss, fix, or regulate rates or other conditions of service;
and or
(2) engage in exclusive, preferential, or cooperative working arrangements, to the extent that such agreements involve ocean transportation in the foreign commerce of the United States.
(c) Acquisitions. This Act does not apply to an acquisition by any person, directly or indirectly, of any voting security or assets of any other person.
(a) Filing requirements. A true copy of every agreement entered into with respect to an activity described in section 4(a) or (b) of this Act shall be filed with the Commission, except agreements related to transportation to be performed within or between foreign countries and agreements among common carriers to establish, operate, or maintain a marine terminal in the United States. In the case of an oral agreement, a complete memorandum specifying in detail the substance of the agreement shall be filed. The Commission may by regulation prescribe the form and manner in which an agreement shall be filed and the additional information and documents necessary to evaluate the agreement.
(b) Conference agreements. Each conference agreement must--
(1) state its purpose;
(2) provide reasonable and equal terms and conditions for admission and readmission to conference membership for any ocean common carrier willing to serve the particular trade or route;
(3) permit any member to withdraw from conference membership upon reasonable notice without penalty;
(4) at the request of any member, require an independent neutral body to police fully the obligations of the conference and its members;
(5) prohibit the conference from engaging in conduct prohibited by section 10(c)(1) or (3) of this Act;
(6) provide for a consultation process designed to promote--
(A) commercial resolution of disputes, and
(B) cooperation with shippers in preventing and eliminating malpractices;
(7)
establish procedures for promptly and fairly considering shippers' requests and
complaints; and
(8) provide that any member of the conference may take independent
action on any rate or service item required to be filed in a tariff under
section 8(a) of this Act upon not more than 10 calendar days' notice to the
conference and that the conference will include the new rate or service item in
its tariff for use by that member, effective no later than 10 calendar days
after receipt of the notice, and by any other member that notifies the
conference that it elects to adopt the independent rate or service item on or
after its effective date, in lieu of the existing conference tariff provision
for that rate or service item provide that any
member of the conference may take independent action on any rate or service item
upon not more than 5 calendar days' notice to the conference and that, except
for exempt commodities not published in the conference tariff, the conference
will include the new rate or service item in its tariff for use by that member,
effective no later than 5 calendar days after receipt of the notice, and by any
other member that notifies the conference that it elects to adopt the
independent rate or service item on or after its effective date, in lieu of the
existing conference tariff provision for that rate or service item.
(c) Ocean common carrier agreements. An ocean common carrier agreement may not--
(1) prohibit or restrict a member or members of the agreement from engaging in negotiations for service contracts with 1 or more shippers;
(2) require a member or members of the agreement to disclose a negotiation on a service contract, or the terms and conditions of a service contract, other than those terms and conditions required to be published under section 8(c)(3) of this Act; or
(3) adopt mandatory rules or requirements affecting the right of an agreement member or agreement members to negotiate and enter into service contracts.
An agreement may provide authority to adopt voluntary guidelines relating to the terms and procedures of an agreement member’s or agreement members’ service contracts if the guidelines explicitly state the right of the members of the agreement to not follow these guidelines. These agreement guidelines shall be confidentially submitted to the Commission.
(c)(d) Interconference agreements. Each agreement between
carriers not members of the same conference must provide the right of
independent action for each carrier. Each agreement between conferences must
provide the right of independent action for each conference.
(d)(e) Assessment agreements. Assessment agreements shall
be filed with the Commission and become effective on filing. The Commission
shall thereafter, upon complaint filed within 2 years of the date of the
agreement, disapprove, cancel, or modify any such agreement, or charge or
assessment pursuant thereto, that it finds, after notice and hearing, to be
unjustly discriminatory or unfair as between carriers, shippers, or ports. The
Commission shall issue its final decision in any such proceeding within 1 year
of the date of filing of the complaint. To the extent that an assessment or
charge is found in the proceeding to be unjustly discriminatory or unfair as
between carriers, shippers, or ports, the Commission shall remedy the unjust
discrimination or unfairness for the period of time between the filing of the
complaint and the final decision by means of assessment adjustments. These
adjustments shall be implemented by prospective credits or debits to future
assessments or charges, except in the case of a complainant who has ceased
activities subject to the assessment or charge, in which case reparation may be
awarded. Except for this subsection and section 7(a) of this Act,
this Act, the Shipping Act, 1916, and the Intercoastal Shipping Act,
1933, do this Act does not apply to
assessment agreements.
(e)(f) Maritime labor agreements. This Act
and the Shipping Act, 1916, do does not apply to maritime labor agreements. This
subsection does not exempt from this Act or the Shipping Act,
1916, any rates, charges, regulations, or practices of a common carrier
that are required to be set forth in a tariff or are
essential terms of a service contract, whether or not those rates,
charges, regulations, or practices arise out of, or are otherwise related to, a
maritime labor agreement.
(a) Notice. Within 7 days after an agreement is filed, the Commission shall transmit a notice of its filing to the Federal Register for publication.
(b) Review standard. The Commission shall reject any agreement filed under section 5(a) of this Act that, after preliminary review, it finds does not meet the requirements of section 5. The Commission shall notify in writing the person filing the agreement of the reason for rejection of the agreement.
(c) Review and effective date. Unless rejected by the Commission under subsection (b), agreements, other than assessment agreements, shall become effective--
(1) on the 45th day after filing, or on the 30th day after notice of the filing is published in the Federal Register, whichever day is later; or
(2) if additional information or documentary material is requested under subsection (d), on the 45th day after the Commission receives--
(A) all the additional information and documentary material requested; or
(B) if the request is not fully complied with, the information and documentary material submitted and a statement of the reasons for noncompliance with the request. The period specified in paragraph (2) may be extended only by the United States District Court for the District of Columbia upon an application of the Commission under subsection (i).
(d) Additional information. Before the expiration of the period specified in subsection (c)(1), the Commission may request from the person filing the agreement any additional information and documentary material it deems necessary to make the determinations required by this section.
(e) Request for expedited approval. The Commission may, upon request of the filing party, shorten the review period specified in subsection (c), but in no event to a date less than 14 days after notice of the filing of the agreement is published in the Federal Register.
(f) Term of agreements. The Commission may not limit the effectiveness of an agreement to a fixed term.
(g) Substantially anticompetitive agreements. If, at any time after the filing or effective date of an agreement, the Commission determines that the agreement is likely, by a reduction in competition, to produce an unreasonable reduction in transportation service or an unreasonable increase in transportation cost, it may, after notice to the person filing the agreement, seek appropriate injunctive relief under subsection (h).
(h) Injunctive relief. The Commission may, upon making the determination specified in subsection (g), bring suit in the United States District Court for the District of Columbia to enjoin operation of the agreement. The court may issue a temporary restraining order or preliminary injunction and, upon a showing that the agreement is likely, by a reduction in competition, to produce an unreasonable reduction in transportation service or an unreasonable increase in transportation cost, may enter a permanent injunction. In a suit under this subsection, the burden of proof is on the Commission. The court may not allow a third party to intervene with respect to a claim under this subsection.
(i) Compliance with informational needs. If a person filing an agreement, or an officer, director, partner, agent, or employee thereof, fails substantially to comply with a request for the submission of additional information or documentary material within the period specified in subsection (c), the United States District Court for the District of Columbia, at the request of the Commission--
(1) may order compliance;
(2) shall extend the period specified in subsection (c)(2) until there has been substantial compliance; and
(3) may grant such other equitable relief as the court in its discretion determines necessary or appropriate.
(j) Nondisclosure of submitted material. Except for an agreement filed under section 5 of this Act, information and documentary material filed with the Commission under section 5 or 6 is exempt from disclosure under section 552 of title 5, United States Code and may not be made public except as may be relevant to an administrative or judicial action or proceeding. This section does not prevent disclosure to either body of Congress or to a duly authorized committee or subcommittee of Congress.
(k) Representation. Upon notice to the
Attorney General, the Commission may represent itself in district court
proceedings under subsections (h) and (i) of this section and section 11(h) of
this Act. With the approval of the Attorney General, the Commission may
represent itself in proceedings in the United States Courts of Appeal under
subsections (h) and (i) of this section and section 11(h) of this Act.
(a) In general. The antitrust laws do not apply to--
(1) any agreement that has been filed under section 5 of this Act and is effective under section 5(d) or section 6, or is exempt under section 16 of this Act from any requirement of this Act;
(2) any activity or agreement within the scope of this Act, whether permitted under or prohibited by this Act, undertaken or entered into with a reasonable basis to conclude that (A) it is pursuant to an agreement on file with the Commission and in effect when the activity took place, or (B) it is exempt under section 16 of this Act from any filing or publication requirement of this Act;
(3) any agreement or activity that relates to transportation services within or between foreign countries, whether or not via the United States unless that agreement or activity has a direct, substantial, and reasonably foreseeable effect on the commerce of the United States;
(4) any agreement or activity concerning the foreign inland segment of through transportation that is part of transportation provided in a United States import or export trade;
(5) any agreement or activity to provide or furnish wharfage, dock, warehouse, or other terminal facilities outside the United States; or
(6) subject to section 20(e)(2) of this Act, any agreement, modification or cancellation approved by the Commission before the effective date of this Act under section 15 of the Shipping Act, 1916, or permitted under section 14b thereof, and any properly published tariff, rate, fare, or charge, classification, rule, or regulation explanatory thereof implementing that agreement, modification, or cancellation.
(b) Exceptions. This Act does not extend antitrust immunity--
(1) to any agreement with or among any group of air carriers, rail carriers, motor carriers, or common carriers by water no subject to this Act with respect to transportation within the United States;
(2) to any
discussion or agreement among common carriers that are subject to this Act
regarding the inland divisions (as opposed to the inland portions) of through
rates within the United States; or
(3) to any
agreement among common carriers subject to this Act to establish, operate, or
maintain a marine terminal in the United States.; or
(4) to any loyalty contract.
(c) Limitations.
(1) Any determination by an agency or court that results in the denial or removal of the immunity to the antitrust laws set forth in subsection (a) shall not remove or alter the antitrust immunity for the period before the determination.
(2) No
person may recover damages under section 4 of the Clayton Act (15 U.S.C. 15) [15
USCS @ 15], or obtain injunctive relief under section 16 of that Act (15 U.S.C.
26) [15 USCS @ 26], for conduct prohibited by this Act.
(a) In general.
(1) Except
with regard to bulk cargo, forest products, recycled metal scrap, new assembled motor vehicles, waste paper, and paper
waste, each common carrier and conference shall file with the
Commission, and keep open to public inspection
inspection, in an automated tariff system,
tariffs showing all its rates, charges, classifications, rules, and
practices between all points or ports on its own route and on any through
transportation route that has been established. However, common carriers shall
not be required to state separately or otherwise reveal in tariff
filings tariffs the inland divisions
of a through rate. Tariffs shall--
(A) state the places between which cargo will be carried;
(B) list each classification of cargo in use;
(C) state the level of ocean freight forwarder transportation intermediary, as defined by section 3(17)(A) of
this Act, compensation, if any, by a carrier or conference;
(D) state separately each terminal or other charge, privilege, or facility under
the control of the carrier or conference and any rules or regulations that in
any way change, affect, or determine any part or the aggregate of the rates or
charges; and
(E) include sample copies of any loyalty contract, bill of lading, contract of
affreightment, or other document evidencing the transportation
agreement.; and
(F) include copies of any loyalty contract, omitting the shipper's name.
(2)
Copies of tariffs shall be made available to any person, and a
reasonable charge may be assessed for them. Tariffs shall be made available electronically to any person,
without time, quantity, or other limitation, through appropriate access from
remote locations, and a reasonable charge may be assessed for such access.
No charge may be assessed a Federal agency for such access.
(b) Time-volume rates. Rates shown in tariffs filed under subsection (a) may vary with the volume of cargo offered over a specified period of time.
(c) Service contracts.
An ocean common carrier or conference may enter into a service
contract with a shipper or shippers' association subject to the requirements of
this Act. Except for service contracts dealing with bulk cargo, forest
products, recycled metal scrap, waste paper, or paper waste, each contract
entered into under this subsection shall be filed confidentially with the
Commission, and at the same time, a concise statement of its essential terms
shall be filed with the Commission and made available to the general public in
tariff format, and those essential terms shall be available to all shippers
similarly situated. The essential terms shall include--
(1) the origin and destination port ranges in the case of port-to-port movements, and the origin and destination geographic areas in the case of through intermodal movements;
(2) the commodity or commodities involved;
(3) the minimum volume;
(4) the line-haul rate;
(5) the duration;
(6) service commitments; and
(7) the liquidated damages for nonperformance, if any.
The exclusive remedy for a breach of a contract entered into under this subsection shall be an action in an appropriate court, unless the parties otherwise agree.
(c) Service contracts.
(1) In general. An individual ocean common carrier or an agreement between or among ocean common carriers may enter into a service contract with one or more shippers subject to the requirements of this Act. The exclusive remedy for a breach of a contract entered into under this subsection shall be an action in an appropriate court, unless the parties otherwise agree. In no case may the contract dispute resolution forum be controlled by or in any way affiliated with a controlled carrier as defined in section 3(8) of this Act, or by the government which owns or controls the carrier.
(2) Filing requirements. Except for service contracts dealing with bulk cargo, forest products, recycled metal scrap, new assembled motor vehicles, waste paper, or paper waste, each contract entered into under this subsection by an individual ocean common carrier or an agreement shall be filed confidentially with the Commission. Each service contract shall include the following essential terms--
(A) the origin and destination port ranges;
(B) the origin and destination geographic areas in the case of through intermodal movements;
(C) the commodity or commodities involved;
(D) the minimum volume or portion;
(E) the line-haul rate;
(F) the duration;
(G) service commitments; and
(H) the liquidated damages for nonperformance, if any.
(3) Publication of certain terms. When a service contract is filed confidentially with the Commission, a concise statement of the essential terms described in paragraphs 2(A), (C), (D), and (F) shall be published and made available to the general public in tariff format.
(4) Disclosure of certain terms.
(A) An ocean common carrier, which is a party to or is subject to the provisions of a collective bargaining agreement with a labor organization, shall, in response to a written request by such labor organization, state whether it is responsible for the following work at dock areas and within port areas in the United States with respect to cargo transported under a service contract described in paragraph (1) of this subsection--
(i) the movement of the shipper’s cargo on a dock area or within the port area or to or from railroad cars on a dock area or within the port area;
(ii) the assignment of intraport carriage of the shipper’s cargo between areas on a dock or within the port area;
(iii) the assignment of the carriage of the shipper’s cargo between a container yard on a dock area or within the port area and a rail yard adjacent to such container yard;
(iv) the assignment of container freight station work and maintenance and repair work performed at a dock area or within the port area;
(B) The ocean common carrier shall provide the information described in subparagraph (A) of this paragraph to the requesting labor organization within a reasonable period of time.
(C) This paragraph requires the disclosure of information by an ocean common carrier only if there exists an applicable and otherwise lawful collective bargaining agreement which pertains to that carrier. No disclosure made by an ocean common carrier shall be deemed to be an admission or agreement that any work is covered by a collective bargaining agreement. Any dispute regarding whether any work is covered by a collective bargaining agreement and the responsibility of the ocean common carrier under such agreement shall be resolved solely in accordance with the dispute resolution procedures contained in the collective bargaining agreement and the National Labor Relations Act, and without reference to this paragraph.
(D) Nothing in this paragraph shall have any effect on the lawfullness or unlawfulness under this Act, the National Labor Relations Act, the Taft-Hartley Act, the Federal Trade Commision Act, the antitrust laws, or any other federal or state law, or any revisions or amendments thereto, of any collective-bargaining agreement or element thereof, including any element that constitutes an essential term of a service contract under this subsection.
(E) For purposes of this paragraph the terms "dock area" and "within the port area" shall have the same meaning and scope as in the applicable collective bargaining agreement between the requesting labor organization and the carrier.
(d) Rates Tariff rates. No new or initial rate or change in
an existing rate that results in an increased cost to the shipper may become
effective earlier than 30 days after filing with the Commission
30 calendar days after publication. The
Commission, for good cause, may allow such a new or initial rate or charge to
become effective in less than 30 calendar
days. A change in an existing rate that results in a decreased cost to the
shipper may become effective upon publication and filing with the
Commission.
(e) Refunds. The Commission may, upon application of a carrier or shipper, permit a common carrier or conference to refund a portion of freight charges collected from a shipper or to waive the collection of a portion of the charges from a shipper if--
(1) there
is an error in a tariff of a clerical or administrative nature or an
error due to inadvertence, in failing
to file publish a new
tariff, or an error in quoting a tariff, and
the refund will not result in discrimination among shippers, ports, or carriers;
(2) the
common carrier or conference has, prior to filing an application for authority
to make a refund, filed a new tariff with the Commission
for an error in a tariff or a failure to publish a
tariff, published a new tariff that sets forth the rate on which the
refund or waiver would be based; and
(3) the common carrier or conference agrees that if permission is
granted by the Commission, an appropriate notice will be published in the
tariff, or such other steps taken as the Commission may require that give notice
of the rate on which the refund or waiver would be based, and additional refunds
or waivers as appropriate shall be made with respect to other shipments in the
manner prescribed by the Commission in its order approving the application;
and
(4)(3) the application for refund or waiver is filed with the
Commission within 180 days from the date of shipment.
(f) Form. The Commission may by
regulation prescribe the form and manner in which the tariffs required by this
section shall be published and filed. The Commission may reject a tariff that is
not filed in conformity with this section and its regulations. Upon rejection by
the Commission, the tariff is void and its use is unlawful.
(f) Marine terminal operator schedules. A marine terminal operator may make available to the public, subject to section 10(d) of this Act, a schedule of rates, regulations, and practices, including limitations of liability for cargo loss or damage, pertaining to receiving, delivering, handling, or storing property at its marine terminal. Any such schedule made available to the public shall be enforceable by an appropriate court as an implied contract without proof of actual knowledge of its provisions.
(g) Regulations. The
Commission shall by regulation prescribe the requirements for the accessability
and accuracy of automated tariff systems established under this section. The
Commission may, after periodic review, prohibit the use of any automated tariff
system that fails to meet the requirements established under this section. The
Commission may not require a common carrier to provide a remote terminal for
access under subsection (a)(2) of this section. The Commission shall by
regulation prescribe the form and manner in which marine terminal operator
schedules authorized by this section shall be published.
(a) Controlled carrier rates. No controlled
carrier subject to this section may maintain rates or charges in its tariffs or
service contracts, or charge or assess rates,
filed with the Commission that are below a level that is just
and reasonable, nor may any such carrier establish, maintain, or enforce or maintain
unjust or unreasonable classifications, rules, or regulations in those tariffs
or service contracts. An unjust or unreasonable classification, rule, or
regulation means one that results or is likely to result in the carriage or
handling of cargo at rates or charges that are below a just and reasonable
level. The Commission may, at any time after notice and hearing,
disapprove prohibit the publication or
use of any rates, charges, classifications, rules, or regulations
that the controlled carrier has failed to demonstrate to be just and reasonable.
In a proceeding under this subsection, the burden of proof is on the controlled
carrier to demonstrate that its rates, charges, classifications, rules, or
regulations are just and reasonable. Rates, charges, classifications,
rules, or regulations filed by a controlled carrier that have been
rejected, suspended, or disapproved by the Commission that have been suspended or prohibited by the
Commission are void and their use is unlawful.
(b) Rate standards. For the purpose of this
section, in determining whether rates, charges, classifications, rules, or
regulations by a controlled carrier are just and reasonable, the Commission
may take into account appropriate factors including, but not limited to,
whether-- (1) shall take into account
whether the rates or charges which have been filed
published or assessed or which would result
from the pertinent classifications, rules, or regulations are below a level
which is fully compensatory to the controlled carrier based upon that carrier's
actual costs or upon its constructive costs, which are hereby defined
as. For the purposes of the preceding
sentence, the term "constructive costs" means the costs of another
carrier, other than a controlled carrier, operating similar vessels and
equipment in the same or a similar trade; similar trade. The Commission may also take into account
other appropriate factors, including, but not limited to, whether--
(2)(1) the rates, charges,
classifications, rules, or regulations are the same as or similar to those
filed published or assessed
or assessed by other carriers in the same trade;
(3)(2) the rates, charges,
classifications, rules, or regulations are required to assure movement of
particular cargo in the trade; or
(4)(3) the rates, charges,
classifications, rules, or regulations are required to maintain acceptable
continuity, level, or quality of common carrier service to or from affected
ports.
(c) Effective date of rates. Notwithstanding
section 8(d) of this Act and except for service contracts, the rates, charges,
classifications, rules, or regulations of controlled carriers may not, without
special permission of the Commission, become effective sooner than the 30th day
after the date of filing with the Commission publication. Each controlled carrier shall, upon
the request of the Commission, file, within 20 days of request (with respect to
its existing or proposed rates, charges, classifications, rules, or
regulations), a statement of justification that sufficiently details the
controlled carrier's need and purpose for such rates, charges, classifications,
rules, or regulations upon which the Commission may reasonably base its
determination of the lawfulness thereof.
(d) Disapproval of rates
Prohibition of rates. Within 120 days of the receipt of
information requested by the Commission under this section, the Commission shall
determine whether the rates, charges, classifications, rules, or regulations of
a controlled carrier may be unjust and unreasonable. Whenever
the Commission is of the opinion that the rates, charges, classifications,
rules, or regulations filed published or
assessed by a controlled carrier may be unjust and unreasonable, the
Commission may shall issue an
order to the controlled carrier to show cause why those rates, charges,
classifications, rules, or regulations should not be
disapproved prohibited.
Pending a determination as to their lawfulness in such a proceeding, the
Commission may suspend the rates, charges, classifications, rules, or
regulations at any time before their effective date. In the case of rates,
charges, classifications, rules, or regulations that have already become
effective, the Commission may, upon the issuance of an order to show cause,
suspend those rates, charges, classifications, rules, or regulations on not less
than 60 30 days' notice to
the controlled carrier. No period of suspension under this subsection may be
greater than 180 days. Whenever the Commission has suspended any rates,
charges, classifications, rules, or regulations under this subsection, the
affected controlled carrier may
file publish new rates,
charges, classifications, rules, or regulations to take effect immediately
during the suspension period in lieu of the suspended rates, charges,
classifications, rules, or regulations--except that the Commission may reject
the new rates, charges, classifications, rules, or regulations if it is of the
opinion that they are unjust and unreasonable.
(e) Presidential review. Concurrently with the
publication thereof, the Commission shall transmit to the President each order
of suspension or final order of disapproval prohibition of rates, charges, classifications, rules,
or regulations of a controlled carrier subject to this section. Within 10 days
after the receipt or the effective date of the Commission order, the President
may request the Commission in writing to stay the effect of the Commission's
order if the President finds that the stay is required for reasons of national
defense or foreign policy, which reasons shall be specified in the report.
Notwithstanding any other law, the Commission shall immediately grant the
request by the issuance of an order in which the President's request shall be
described. During any such stay, the President shall, whenever practicable,
attempt to resolve the matter in controversy by negotiation with representatives
of the applicable foreign governments.
(f) Exceptions. This section does not apply to--
(1) a controlled carrier of a state whose vessels are entitled by a treaty of the United States to receive national or most-favored-nation treatment; or
(2) a controlled carrier of a state which, on the effective date of this
section [see the Effective date of section note to this section], has subscribed
to the statement of shipping policy contained in note 1 to annex A of the Code
of Liberalization of Current Invisible Operations, adopted by the Organization
for Economic Cooperation and Development;
(3) rates, charges, classifications, rules, or regulations of a
controlled carrier in any particular trade that are covered by an agreement
effective under section 6 of this Act, other than an agreement in which all of
the members are controlled carriers not otherwise excluded from the provisions
of this subsection;
(4) rates, charges, classifications, rules, or regulations governing the
transportation of cargo by a controlled carrier between the country by whose
government it is owned or controlled, as defined herein and the United States;
or
(5)(2) a trade served
exclusively by controlled carriers.
(a) In general. No person may--
(1) knowingly and willfully, directly or indirectly, by means of false billing, false classification, false weighing, false report of weight, false measurement, or by any other unjust or unfair device or means obtain or attempt to obtain ocean transportation for property at less than the rates or charges that would otherwise be applicable;
(2) operate under an agreement required to be filed under section 5 of this Act that has not become effective under section 6, or that has been rejected, disapproved, or canceled; or
(3) operate under an agreement required to be filed under section 5 of this Act except in accordance with the terms of the agreement or any modifications made by the Commission to the agreement.
(b) Common carriers. No common carrier, either alone or in conjunction with any other person, directly or indirectly, may--
(1) charge, demand, collect, or receive greater, less, or different
compensation for the transportation of property or for any service in connection
therewith than the rates and charges that are shown in its tariffs or service
contracts;
(2) rebate, refund, or remit in any manner, or by any device, any
portion of its rates except in accordance with its tariffs or service
contracts;
(3) extend or deny to any person any privilege, concession, equipment,
or facility except in accordance with its tariffs or service contracts;
(4)(1) allow any person to
obtain transportation for property at less than the rates or charges established
by the carrier in its tariff or service contract by means of false billing,
false classification, false weighing, false measurement, or by any other unjust
or unfair device or means;
(2) provide service in the liner trade that--
(A) is not in accordance with the rates, charges, classifications, rules, and practices contained in a tariff published or a service contract entered into under section 8 of this Act unless excepted or exempted under section 8(a)(1) or 16 of this Act; or
(B) is under a tariff or service contract which has been suspended or prohibited by the Commission under section 9 of this Act or the Foreign Shipping Practices Act of 1988 (46 App. U.S.C. 1710a);
(3)(5) retaliate against any shipper
by refusing, or threatening to refuse, cargo space accommodations when
available, or resort to other unfair or unjustly discriminatory methods because
the shipper has patronized another carrier, or has filed a complaint, or for any
other reason;
(4)(6) except for service contracts,
for service pursuant to a tariff, engage in
any unfair or unjustly discriminatory practice in the matter of--
(A) rates or charges;
(B) cargo classifications;
(C) cargo space accommodations or other facilities, due regard being had for the proper loading of the vessel and the available tonnage;
(D) the loading and landing of freight; or
(E) the adjustment and settlement of claims;
(5) for service pursuant to a service contract, engage in any unjustly discriminatory practice in the matter of rates or charges with respect to any port;
(6)(7) employ a fighting ship; use a vessel or vessels in a particular trade for the purpose of
excluding, preventing, or reducing competition, by driving another ocean common
carrier out of that trade;
(7)(8) offer or pay any deferred
rebates;
(9) use a loyalty contract, except in conformity with the antitrust
laws;
(10) demand, charge, or collect any rate or charge that is unjustly
discriminatory between shippers or ports;
(11) except for service contracts, make or give any undue or
unreasonable preference or advantage to any particular person, locality, or
description of traffic in any respect whatsoever;
(12) subject any particular person, locality, or description of traffic
to an unreasonable refusal to deal or any undue or unreasonable prejudice or
disadvantage in any respect whatsoever;
(13) refuse to negotiate with a shippers’ association;
(8) for service pursuant to a tariff, give any undue or unreasonable preference or advantage or impose any undue or unreasonable prejudice or disadvantage;
(9) for service pursuant to a service contract, give any undue or unreasonable preference or advantage or impose any undue or unreasonable prejudice or disadvantage with respect to any port;
(10) unreasonably refuse to deal or negotiate;
(11)(14) knowingly and willfully
accept cargo from or transport cargo for the account of a
non-vessel-operating common carrier an ocean
transportation intermediary that does not have a tariff and a bond,
insurance, or other surety as required by sections 8 and 23
19 of this Act;
(12)(15) knowingly and willfully enter
into a service contract with a non-vessel-operating common or in
which a non-vessel-operating common carrier is listed as an affiliate
an ocean transportation intermediary that does
not have a tariff and a bond, insurance, or other surety as required by sections
8 and 23 19 of this
Act, or with an affiliate of such ocean transportation
intermediary; or
(13)(16) knowingly disclose, offer,
solicit, or receive any information concerning the nature, kind, quantity,
destination, consignee, or routing of any property tendered or delivered to a
common carrier without the consent of the shipper or consignee if that
information--
(A) may be used to the detriment or prejudice of the shipper or consignee;
(B) may improperly disclose its business transaction to a competitor; or
(C) may be used to the detriment or prejudice of any common carrier.
Nothing in paragraph 13 16
shall be construed to prevent providing such information, in response to legal
process, to the United States, the Commission,
or to an independent neutral body operating within the scope of its authority to
fulfill the policing obligations of the parties to an agreement effective under
this Act. Nor shall it be prohibited for any ocean common carrier that is a
party to a conference agreement approved under this Act, or any receiver,
trustee, lessee, agent, or employee of that carrier, or any other person
authorized by that carrier to receive information, to give information to the
conference or any person, firm, corporation, or agency designated by the
conference, or to prevent the conference or its designee from soliciting or
receiving information for the purpose of determining whether a shipper or
consignee has breached an agreement with the conference or its member lines or
for the purpose of determining whether a member of the conference has breached
the conference agreement, or for the purpose of compiling statistics of cargo
movement, but the use of such information for any other purpose prohibited by
this Act or any other Act is prohibited.
(c) Concerted action. No conference or group of two or more common carriers may--
(1) boycott, or take any other concerted action resulting in an unreasonable refusal to deal;
(2) engage in conduct that unreasonably restricts the use of intermodal services or technological innovations;
(3) engage in any predatory practice designed to eliminate the participation, or deny the entry, in a particular trade of a common carrier not a member of the conference, a group of common carriers, an ocean tramp, or a bulk carrier;
(4) negotiate with a non-ocean carrier or group of non-ocean carriers (for example, truck, rail, or air operators) on any matter relating to rates or services provided to ocean common carriers within the United States by those non-ocean carriers, unless such negotiations and any resulting agreements are not in violation of the antitrust laws and are consistent with the purposes of this Act: Provided, that this paragraph does not prohibit the setting and publishing of a joint through rate by a conference, joint venture, or an association of ocean common carriers;
(5) deny
in the export foreign commerce of the United States compensation to an ocean
freight forwarder transportation
intermediary, as defined by section 3(17)(A) of this Act, or limit
that compensation to less than a reasonable amount; or
(6)
allocate shippers among specific carriers that are parties to the agreement or
prohibit a carrier that is a party to the agreement from soliciting cargo from a
particular shipper, except as otherwise required by the law of the United States
or the importing or exporting country, or as agreed to by a shipper in a service
contract.;
(7) for service pursuant to a service contract, engage in any unjustly discriminatory practice in the matter of rates or charges with respect to any locality, port, or persons due to those persons’ status as shippers’ associations or ocean transportation intermediaries; or
(8) for service pursuant to a service contract, give any undue or unreasonable preference or advantage or impose any undue or unreasonable prejudice or disadvantage with respect to any locality, port, or persons due to those persons’ status as shippers’ associations or ocean transportation intermediaries;
(d) Common carriers, ocean freight
forwarders transportation
intermediaries, and marine terminal operators.
(1) No
common carrier, ocean freight forwarder transportation intermediary, or marine terminal
operator may fail to establish, observe, and enforce just and reasonable
regulations and practices relating to or connected with receiving, handling,
storing, or delivering property.
(2) No marine terminal operator may agree with another marine terminal operator or with a common carrier to boycott, or unreasonably discriminate in the provision of terminal services to, any common carrier or ocean tramp.
(3) The
prohibitions in subsections (b)(11), (12), and (16) subsections (b) (10) and (13) of this section apply to
marine terminal operators.
(4) No marine terminal operator may give any undue or unreasonable preference or advantage or impose any undue or unreasonable prejudice or disadvantage with respect to any person.
(5) The prohibition in subsection (b)(13) of this section applies to ocean transportation intermediaries, as defined by section 3(17)(A) of this Act.
(e) Joint ventures. For purposes of this
section, a joint venture or consortium of two or more common carriers but
operated as a single entity shall be treated as a single common carrier.
(a) Filing of complaints. Any person may file with the Commission a sworn complaint alleging a violation of this Act, other than section 6(g), and may seek reparation for any injury caused to the complainant by that violation.
(b) Satisfaction or investigation of complaints. The Commission shall furnish a copy of a complaint filed pursuant to subsection (a) of this section to the person named therein who shall, within a reasonable time specified by the Commission, satisfy the complaint or answer it in writing. If the complaint is not satisfied, the Commission shall investigate it in an appropriate manner and make an appropriate order.
(c) Commission investigations. The Commission, upon complaint or upon its own motion, may investigate any conduct or agreement that it believes may be in violation of this Act. Except in the case of an injunction granted under subsection (h) of this section, each agreement under investigation under this section remains in effect until the Commission issues an order under this subsection. The Commission may by order disapprove, cancel, or modify any agreement filed under section 5(a) of this Act that operates in violation of this Act. With respect to agreements inconsistent with section 6(g) of this Act, the Commission's sole remedy is under section 6(h).
(d) Conduct of investigation. Within 10 days after the initiation of a proceeding under this section, the Commission shall set a date on or before which its final decision will be issued. This date may be extended for good cause by order of the Commission.
(e) Undue delays. If, within the time period specified in subsection (d), the Commission determines that it is unable to issue a final decision because of undue delays caused by a party to the proceedings, the Commission may impose sanctions, including entering a decision adverse to the delaying party.
(f) Reports. The Commission shall make a written report of every investigation made under this Act in which a hearing was held stating its conclusions, decisions, findings of fact, and order. A copy of this report shall be furnished to all parties. The Commission shall publish each report for public information, and the published report shall be competent evidence in all courts of the United States.
(g) Reparations. For any complaint
filed within 3 years after the cause of action accrued, the Commission shall,
upon petition of the complainant and after notice and hearing, direct payment of
reparations to the complainant for actual injury (which, for purposes of this
subsection, also includes the loss of interest at commercial rates compounded
from the date of injury) caused by a violation of this Act plus reasonable
attorney's fees. Upon a showing that the injury was caused by activity
that is prohibited by section 10(b)(5) or (7) 10(b)(3) or (6) or section 10(c)(1) or (3) of this Act,
or that violates section 10(a)(2) or (3), the Commission may direct the payment
of additional amounts; but the total recovery of a complainant may not exceed
twice the amount of the actual injury. In the case of injury caused by an
activity that is prohibited by section 10(b)(6)(A) or (B)
10(b)(4)(A) or (B) of this Act, the amount of
the injury shall be the difference between the rate paid by the injured shipper
and the most favorable rate paid by another shipper.
(h) Injunction.
(1) In connection with any investigation conducted under this section, the Commission may bring suit in a district court of the United States to enjoin conduct in violation of this Act. Upon a showing that standards for granting injunctive relief by courts of equity are met and after notice to the defendant, the court may grant a temporary restraining order or preliminary injunction for a period not to exceed 10 days after the Commission has issued an order disposing of the issues under investigation. Any such suit shall be brought in a district in which the defendant resides or transacts business.
(2) After
filing a complaint with the Commission under subsection (a), the complainant may
file suit in a district court of the United States to enjoin conduct in
violation of this Act. Upon a showing that standards for granting injunctive
relief by courts of equity are met and after notice to the defendant, the court
may grant a temporary restraining order or preliminary injunction for a period
not to exceed 10 days after the Commission has issued an order disposing of the
complaint. Any such suit shall be brought in the district in which the defendant
has been sued by the Commission under paragraph (1); or, if no suit has been
filed, in a district in which the defendant resides or transacts business. A
defendant that prevails in a suit under this paragraph shall be allowed
reasonable attorney's fees to be assessed and collected as part of the costs of
the suit.
(a) Definitions. For purposes of this section--
(1)
"common carrier", "marine terminal operator", "non-vessel-operating
common carrier" "ocean transportation
intermediary", "ocean common carrier", "person", "shipper",
"shippers' association", and "United States" have the meanings given each such
term, respectively, in section 3 of this Act; the Shipping Act of 1984 (46 App.
U.S.C. 1702);
(2) "foreign carrier" means an ocean common carrier a majority of whose vessels are documented under the laws of a country other than the United States;
(3) "maritime services" means port-to-port carriage of cargo by the vessels operated by ocean common carriers;
(4)
"maritime-related services" means intermodal operations, terminal operations,
cargo solicitation, forwarding and agency services,
non-vessel-operating common carrier ocean transportation intermediary services and
operations, and all other activities and services integral to total
transportation systems of ocean common carriers and their foreign domiciled
affiliates on their own and others' behalf;
(5) "United States carrier" means an ocean common carrier which operates vessels documented under the laws of the United States; and
(6) "United States oceanborne trade" means the carriage of cargo between the United States and a foreign country, whether direct or indirect, by an ocean common carrier.
(b) Authority to conduct investigations. The Federal Maritime Commission shall investigate whether any laws, rules, regulations, policies, or practices of foreign governments, or any practices of foreign carriers or other persons providing maritime or maritime-related services in a foreign country result in the existence of conditions that--
(1) adversely affect the operations of United States carriers in United States oceanborne trade; and
(2) do not exist for foreign carriers of that country in the United States under the laws of the United States or as a result of acts of United States carriers or other persons providing maritime or maritime-related services in the United States.
(c) Investigations.
(1)
Investigations under subsection (b) of this section may be initiated by the
Commission on its own motion or on the petition of any person, including any
common carrier, shipper, shippers' association, ocean freight
forwarder transportation
intermediary, or marine terminal operator, or any branch, department,
agency, or other component of the Government of the United States.
(2) The Commission shall complete any such investigation and render a decision within 120 days after it is initiated, except that the Commission may extend such 120-day period for an additional 90 days if the Commission is unable to obtain sufficient information to determine whether a condition specified in subsection (b) of this section exists. Any notice providing such an extension shall clearly state the reasons for such extension.
(d) Information requests.
(1) In
order to further the purposes of subsection (b) of this section, the Commission
may, by order, require any person (including any common carrier, shipper,
shippers' association, ocean freight forwarder transportation intermediary, or marine terminal
operator, or any officer, receiver, trustee, lessee, agent or employee thereof)
to file with the Commission any periodic or special report, answers to
questions, documentary material, or other information which the Commission
considers necessary or appropriate. The Commission may require that the response
to any such order shall be made under oath. Such response shall be furnished in
the form and within the time prescribed by the Commission.
(2) In an investigation under subsection (b) of this section, the Commission may issue subpoenas to compel the attendance and testimony of witnesses and the production of records or other evidence.
(3) Notwithstanding any other provision of law, the Commission may, in its discretion, determine that any information submitted to it in response to a request under this subsection, or otherwise, shall not be disclosed to the public.
(e) Action against foreign carriers.
(1) Whenever, after notice and opportunity for comment or hearing, the Commission determines that the conditions specified in subsection (b) of this section exist, the Commission shall take such action as it considers necessary and appropriate against any foreign carrier that is a contributing cause to, or whose government is a contributing cause to, such conditions, in order to offset such conditions. Such action may include--
(A) limitations on sailings to and from United States ports or on the amount or type of cargo carried;
(B) suspension, in whole or in part, of any or all tariffs filed with
the Commission and service contracts,
including the right of an ocean common carrier to use any or all tariffs
and service contracts of conferences in United
States trades of which it is a member for such period as the Commission
specifies;
(C) suspension, in whole or in part, of the right of an ocean common carrier to operate under any agreement filed with the Commission, including agreements authorizing preferential treatment at terminals, preferential terminal leases, space chartering, or pooling of cargo or revenues with other ocean common carriers; and
(D) a fee, not to exceed $ 1,000,000 per voyage.
(2) The Commission may consult with, seek the cooperation of, or make recommendations to other appropriate Government agencies prior to taking any action under this subsection.
(3) Before a determination under this subsection becomes effective or a request is made under subsection (f) of this section, the determination shall be submitted immediately to the President who may, within 10 days after receiving such determination, disapprove the determination in writing, setting forth the reasons for the disapproval, if the President finds that disapproval is required for reasons of the national defense or the foreign policy of the United States.
(f) Actions upon request of the Commission. Whenever the conditions specified in subsection (b) of this section are found by the Commission to exist, upon the request of the Commission--
(1) the collector of customs at any port or place of destination in the United States shall refuse the clearance required by section 4197 of the Revised Statutes (46 App. U.S.C. 91) to any vessel of a foreign carrier that is identified by the Commission under subsection (e) of this section; and
(2) the Secretary of the department in which the Coast Guard is operating shall deny entry, for purposes of oceanborne trade, of any vessel of a foreign carrier that is identified by the Commission under subsection (e) of this section to any port or place in the United States or the navigable waters of the United States, or shall detain any such vessel at the port or place in the United States from which it is about to depart for any other port or place in the United States.
(g) Report. The Commission shall include in its annual report to Congress--
(1) a list of the twenty foreign countries which generated the largest volume of oceanborne liner cargo for the most recent calendar year in bilateral trade with the United States;
(2) an analysis of conditions described in subsection (b) of this section being investigated or found to exist in foreign countries;
(3) any actions being taken by the Commission to offset such conditions;
(4) any recommendations for additional legislation to offset such conditions; and
(5) a list of petitions filed under subsection (c) of this section that the Commission rejected, and the reasons for each such rejection.
(h) The actions against foreign carriers
authorized in subsections (e) and (f) of this section may be used in the
administration and enforcement of section 13(b)(5)(b)(6) of the Shipping Act of 1984 (46 U.S.C. App.
1712(b)(5)(b)(6)) or section
19(1)(b) of the Merchant Marine Act, 1920 (46 U.S.C. App. 876).
(i) Any rule, regulation or final order of the
Commission issued under this section shall be reviewable exclusively in the same
forum and in the same manner as provided in section 2342(3)(B) of title 28,
United States Code.
(a) In general. In investigations and adjudicatory proceedings under this Act--
(1) depositions, written interrogatories, and discovery procedures may be utilized by any party under rules and regulations issued by the Commission that, to the extent practicable, shall be in conformity with the rules applicable in civil proceedings in the district courts of the United States; and
(2) the Commission may by subpoena compel the attendance of witnesses and the production of books, papers, documents, and other evidence.
(b) Witness fees. Witnesses shall,
unless otherwise prohibited by law, be entitled to the same fees and mileage as
in the courts of the United States.
(a) Assessment of penalty. Whoever violates a provision of this Act, a regulation issued thereunder, or a Commission order is liable to the United States for a civil penalty. The amount of the civil penalty, unless otherwise provided in this Act, may not exceed $ 5,000 for each violation unless the violation was willfully and knowingly committed, in which case the amount of the civil penalty may not exceed $ 25,000 for each violation. Each day of a continuing violation constitutes a separate offense. The amount of any penalty imposed upon a common carrier under this subsection shall constitute a lien upon the vessels operated by that common carrier and any such vessel may be libeled therefor in the district court of the United States for the district in which it may be found.
(b) Additional penalties.
(1) For a
violation of section 10(b)(1),(2),(3),(4), or (8) section 10(b)(1), (2), or (7) of this Act, the
Commission may suspend any or all tariffs of the common carrier, or that common
carrier's right to use any or all tariffs of conferences of which it is a
member, for a period not to exceed 12 months.
(2) For
failure to supply information ordered to be produced or compelled by subpoena
under section 12 of this Act, the Commission may, after notice and an
opportunity for hearing, suspend any or all tariffs of a common carrier, or that
common carrier's right to use any or all tariffs of conferences of which it is a
member.
(3) A
common carrier that accepts or handles cargo for carriage under a tariff that
has been suspended or after its right to utilize that tariff has been suspended
is subject to a civil penalty of not more than $ 50,000 for each shipment.
(4) If the Commission finds, after notice and an opportunity for a hearing, that a common carrier has failed to supply information ordered to be produced or compelled by subpoena under section 12 of this Act, the Commission may request that the Secretary of the Treasury refuse or revoke any clearance required for a vessel operated by that common carrier. Upon request by the Commission, the Secretary of the Treasury shall, with respect to the vessel concerned, refuse or revoke any clearance required by section 4197 of the Revised Statutes of the United States (46 U.S.C. App. 91).
(5) (4) If, in defense of its failure
to comply with a subpena or discovery order, a common carrier alleges that
documents or information located in a foreign country cannot be produced because
of the laws of that country, the Commission shall immediately notify the
Secretary of State of the failure to comply and of the allegation relating to
foreign laws. Upon receiving the notification, the Secretary of State shall
promptly consult with the government of the nation within which the documents or
information are alleged to be located for the purpose of assisting the
Commission in obtaining the documents or information sought.
(6) (5) If, after notice and hearing,
the Commission finds that the action of a common carrier, acting alone or in
concert with any person, or a foreign government has unduly impaired access of a
vessel documented under the laws of the United States to ocean trade between
foreign ports, the Commission shall take action that it finds appropriate,
including the imposition of any of the penalties authorized under paragraphs
(1), (2), and (3) (3), and
(4) of this subsection.
(7) (6) Before an order under this
subsection becomes effective, it shall be immediately submitted to the President
who may, within 10 days after receiving it, disapprove the order if the
President finds that disapproval is required for reasons of the national defense
or the foreign policy of the United States.
(c) Assessment procedures. Until a matter is referred to the Attorney General, the Commission may, after notice and an opportunity for hearing, assess each civil penalty provided for in this Act. In determining the amount of the penalty, the Commission shall take into account the nature, circumstances, extent, and gravity of the violation committed and, with respect to the violator, the degree of culpability, history of prior offenses, ability to pay, and such other matters as justice may require. The Commission may compromise, modify, or remit, with or without conditions, any civil penalty.
(d) Review of civil penalty. A person against whom a civil penalty is assessed under this section may obtain review thereof under chapter 158 of title 28, United States Code [28 USCS @ 2341 et seq.].
(e) Failure to pay assessment. If a person fails to pay an assessment of a civil penalty after it has become final or after the appropriate court has entered final judgment in favor of the Commission, the Attorney General at the request of the Commission may seek to recover the amount assessed in an appropriate district court of the United States. In such an action, the court shall enforce the Commission's order unless it finds that the order was not regularly made or duly issued.
(f) Limitations.
(1) No
penalty may be imposed on any person for conspiracy to violate section 10(a)(1),
(b)(1), or (b)(4) or (b)(2)
of this Act [46 USCS Appx @ 1709(a)(1), (b)(1), (4)(2)], or to defraud the Commission by concealment of
such a violation. Neither the Commission nor any
court shall order any person to pay the difference between the amount billed and
agreed upon in writing with a common carrier or its agent and the amount set
forth in any tariff or service contract by that common carrier for the
transportation service provided.
(2) Each
proceeding to assess a civil penalty under this section shall be commenced
within 5 years from the date the violation occurred.
(a) In general. Orders of the Commission relating to a violation of this Act or a regulation issued thereunder shall be made, upon sworn complaint or on its own motion, only after opportunity for hearing. Each order of the Commission shall continue in force for the period of time specified in the order or until suspended, modified, or set aside by the Commission or a court of competent jurisdiction.
(b) Reversal or suspension of orders. The Commission may reverse, suspend, or modify any order made by it, and upon application of any party to a proceeding may grant a rehearing of the same or any matter determined therein. No rehearing may, except by special order of the Commission, operate as a stay of that order.
(c) Enforcement of nonreparation orders. In case of violation of an order of the Commission, or for failure to comply with a Commission subpena, the Attorney General, at the request of the Commission, or any party injured by the violation, may seek enforcement by a United States district court having jurisdiction over the parties. If, after hearing, the court determines that the order was properly made and duly issued, it shall enforce the order by an appropriate injunction or other process, mandatory or otherwise.
(d) Enforcement of reparation orders.
(1) In case of violation of an order of the Commission for the payment of reparation, the person to whom the award was made may seek enforcement of the order in a United States district court having jurisdiction of the parties.
(2) In a United States district court the findings and order of the Commission shall be prima facie evidence of the facts therein stated, and the petitioner shall not be liable for costs, nor for the costs of any subsequent stage of the proceedings, unless they accrue upon his appeal. A petitioner in a United States district court who prevails shall be allowed reasonable attorney's fees to be assessed and collected as part of the costs of the suit.
(3) All parties in whose favor the Commission has made an award of reparation by a single order may be joined as plaintiffs, and all other parties in the order may be joined as defendants, in a single suit in a district in which any one plaintiff could maintain a suit against any one defendant. Service of process against a defendant not found in that district may be made in a district in which is located any office of, or point of call on a regular route operated by, that defendant. Judgment may be entered in favor of any plaintiff against the defendant liable to that plaintiff.
(e) Statute of limitations. An action seeking
enforcement of a Commission order must be filed within 3 years after the date of
the violation of the order.
(a) Reports. The
Commission may require any common carrier, or any officer, receiver, trustee,
lessee, agent, or employee thereof, to file with it any periodical or special
report or any account, record, rate, or charge, or memorandum of any facts and
transactions appertaining to the business of that common carrier. The report,
account, record, rate, charge, or memorandum shall be made under oath whenever
the Commission so requires, and shall be furnished in the form and within the
time prescribed by the Commission. Conference minutes required to be filed with
the Commission under this section shall not be released to third parties or
published by the Commission.
(b) Certification. The
Commission shall require the chief executive officer of each common carrier and,
to the extent it deems feasible, may require any shipper, shippers' association,
marine terminal operator, ocean transportation intermediary, or broker to file a
periodic written certification made under oath with the Commission attesting
to--
(1) a policy prohibiting the payment, solicitation, or receipt of any
rebate that is unlawful under the provisions of this Act;
(2) the fact that this policy has been promulgated recently to each
owner, officer, employee, and agent thereof;
(3) the details of the efforts made within the company or otherwise to
prevent or correct illegal rebating; and
(4) a policy of full cooperation with the Commission in its efforts to
end those illegal practices.
Whoever fails to file a certificate required by the Commission under
this subsection is liable to the United States for a civil penalty of not more
than $ 5,000 for each day the violation continues.
The Commission, upon application or on its own motion, may by order or
rule exempt for the future any class of agreements between persons subject to
this Act or any specified activity of those persons from any requirement of this
Act if it finds that the exemption will not result in
substantial reduction in competition or be detrimental to commerce
substantially impair effective regulation by the Commission, be unjustly
discriminatory, result in substantial reduction in competition, or be
detrimental to commerce. The Commission may attach conditions to any
exemption and may, by order, revoke any exemption. No order or rule of exemption
or revocation of exemption may be issued unless opportunity for hearing has been
afforded interested persons and departments and agencies of the United States.
(a) The Commission may prescribe rules and regulations as necessary to carry out this Act.
(b) The Commission may prescribe interim rules
and regulations necessary to carry out this Act. For this purpose, the
Commission is excepted from compliance with the notice and comment requirements
of section 553 of title 5, United States Code. All rules and regulations
prescribed under the authority of this subsection that are not earlier
superseded by final rules shall expire no later than 270 days after the date of
enactment of this Act.
(a) Collection of data. For a period
of 5 years following the enactment of this Act [enacted Mar. 20, 1984], the
Commission shall collect and analyze information concerning the impact of this
Act upon the international ocean shipping industry, including data on:
(1) increases or decreases in the level of tariffs;
(2) changes in the frequency or type of common carrier services
available to specific ports or geographic regions;
(3) the number and strength of independent carriers in various trades;
and
(4) the length of time, frequency, and cost of major types of regulatory
proceedings before the Commission.
(b) Consultation with other
departments and agencies. The Commission shall consult with the Department of
Transportation, the Department of Justice, and the Federal Trade Commission
annually concerning data collection. The Department of Transportation, the
Department of Justice, and the Federal Trade Commission shall at all times have
access to the data collected under this section to enable them to provide
comments concerning data collection.
(c) Agency reports.
(1) Within 6 months after expiration of the 5-year period specified in
subsection (a), the Commission shall report the information, with an analysis of
the impact of this Act, to Congress, to the Advisory Commission on Conferences
in Ocean Shipping established in subsection (d), and to the Department of
Transportation, the Department of Justice, and the Federal Trade
Commission.
(2) Within 60 days after the Commission submits its report, the
Department of Transportation, the Department of Justice, and the Federal Trade
Commission shall furnish an analysis of the impact of this Act to Congress and
to the Advisory Commission on Conferences in Ocean Shipping.
(3) The reports required by this subsection shall specifically address
the following topics:
(A) the advisability of adopting a system of tariffs based on volume and
mass of shipment;
(B) the need for antitrust immunity for ports and marine terminals;
and
(C) the continuing need for the statutory requirement that tariffs be
filed with and enforced by the Commission.
(d) Establishment and composition of
Advisory Commission.
(1) Effective 5 ½ years after the date of enactment of this
Act [enacted Mar. 20, 1984], there is established the Advisory Commission on
Conferences in Ocean Shipping (hereinafter referred to as the "Advisory
Commission").
(2) The Advisory Commission shall be composed of 17 members as
follows:
(A) a cabinet level official appointed by the President;
(B) 4 members from the United States Senate appointed by the President
pro tempore of the Senate, 2 from the membership of the Committee on Commerce,
Science, and Transportation and 2 from the membership of the Committee on the
Judiciary; (C) 4 members from the United States House of
Representatives appointed by the Speaker of the House, 2 from the membership of
the Committee on Merchant Marine and Fisheries, and 2 from the membership of the
Committee on the Judiciary; and
(D) 8 members from the private sector appointed by the
President.
(3) The President shall designate the chairman of the Advisory
Commission.
(4) The term of office for members shall be for the term of the Advisory
Commission.
(5) A vacancy in the Advisory Commission shall not affect its powers,
and shall be filled in the same manner in which the original appointment was
made.
(6) Nine members of the Advisory Commission shall constitute a quorum,
but the Advisory Commission may permit as few as 2 members to hold
hearings.
(e) Compensation of members of the
Advisory Commission.
(1) Officials of the United States Government and Members of Congress
who are members of the Advisory Commission shall serve without compensation in
addition to that received for their services as officials and Members, but they
shall be reimbursed for reasonable travel, subsistence, and other necessary
expenses incurred by them in the performance of the duties vested in the
Advisory Commission.
(2) Members of the Advisory Commission appointed from the private sector
shall each receive compensation not exceeding the maximum per diem rate of pay
for grade 18 of the General Schedule under section 5332 of title 5, United
States Code [5 USCS @ 5332], when engaged in the performance of the duties
vested in the Advisory Commission, plus reimbursement for reasonable travel,
subsistence, and other necessary expenses incurred by them in the performance of
those duties, notwithstanding the limitations in sections 5701 through 5733 of
title 5, United States Code [5 USCS @@ 5701--5733].
(3) Members of the Advisory Commission appointed from the private sector
are not subject to section 208 of title 18, United States Code [18 USCS @ 208].
Before commencing service, these members shall file with the Advisory Commission
a statement disclosing their financial interests and business and former
relationships involving or relating to ocean transportation. These statements
shall be available for public inspection at the Advisory Commission's
offices. (f) Advisory Commission functions. The Advisory
Commission shall conduct a comprehensive study of, and make recommendations
concerning, conferences in ocean shipping. The study shall specifically address
whether the Nation would be best served by prohibiting conferences, or by closed
or open conferences.
(g) Powers of the Advisory
Commission.
(1) The Advisory Commission may, for the purpose of carrying out its
functions, hold such hearings and sit and act at such times and places,
administer such oaths, and require, by subpena or otherwise, the attendance and
testimony of such witnesses, and the production of such books, records,
correspondence, memorandums, papers, and documents as the Advisory Commission
may deem advisable. Subpoenas may be issued to any person within the
jurisdiction of the United States courts, under the signature of the chairman,
or any duly designated member, and may be served by any person designated by the
chairman, or that member. In case of contumacy by, or refusal to obey a subpena
to, any person, the Advisory Commission may advise the Attorney General who
shall invoke the aid of any court of the United States within the jurisdiction
of which the Advisory Commission's proceedings are carried on, or where that
person resides or carries on business, in requiring the attendance and testimony
of witnesses and the production of books, papers, and documents; and the court
may issue an order requiring that person to appear before the Advisory
Commission, there to produce records, if so ordered, or to give testimony. A
failure to obey such an order of the court may be punished by the court as a
contempt thereof. All process in any such case may be served in the judicial
district whereof the person is an inhabitant or may be found.
(2) Each department, agency, and instrumentality of the executive branch
of the Government, including independent agencies, shall furnish to the Advisory
Commission, upon request made by the chairman, such information as the Advisory
Commission deems necessary to carry out its functions.
(3) Upon request of the chairman, the Department of Justice, the
Department of Transportation, the Federal Maritime Commission, and the Federal
Trade Commission shall detail staff personnel as necessary to assist the
Advisory Commission.
(4) The chairman may rent office space for the Advisory Commission, may
utilize the services and facilities of other Federal agencies with or without
reimbursement, may accept voluntary services notwithstanding section 1342 of
title 31, United States Code [31 USCS @ 1342], may accept, hold, and administer
gifts from other Federal agencies, and may enter into contracts with any public
or private person or entity for reports, research, or surveys in furtherance of
the work of the Advisory Commission.
(h) Final report. The Advisory
Commission shall, within 1 year after all of its members have been duly
appointed, submit to the President and to the Congress a final report containing
a statement of the findings and conclusions of the Advisory Commission resulting
from the study undertaken under subsection (f), including recommendations for
such administrative, judicial, and legislative action as it deems advisable.
Each recommendation made by the Advisory Commission to the President and to the
Congress must have the majority vote of the Advisory Commission present and
voting.
(i) Expiration of the Commission. The
Advisory Commission shall cease to exist 30 days after the submission of its
final report.
(j) Authorization of appropriation.
There is authorized to be appropriated $ 500,000 to carry out the activities of
the Advisory Commission.
(a) License. No person may act
as an ocean freight forwarder unless that person holds a license issued by the
Commission. The Commission shall issue a forwarder's license to any person
that--
(1) the Commission determines to be qualified by experience and
character to render forwarding services; and
(2) furnishes a bond in a form and amount determined by the Commission
to insure financial responsibility that is issued by a surety company found
acceptable by the Secretary of the Treasury.
(a) License. No person in the United States may act as an ocean transportation intermediary unless that person holds a license issued by the Commission. The Commission shall issue an intermediary's license to any person that the Commission determines to be qualified by experience and character to act as an ocean transportation intermediary.
(b) Financial Responsibility.
&nb