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S. 47 (98th): Shipping Act of 1984


The text of the bill below is as of Mar 20, 1984 (Passed Congress).


PUBLIC LAW 98-237—MAR. 20, 1984                                   98 STAT. 67

Public Law 98-237                                                                      f        ^:
98th Congress
                                     An Act
To improve the international ocean commerce transportation system of the United    Mar. 20, 1984
                                     States.                                          [S. 47]
  Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled. That this Act may Shipping Act
be cited as the "Shipping Act of 1984".                           «f J?!^.
                                                                                  46 u s e app. 1 (01
                              TABLE OF CONTENTS                                   note.
Sec. 2. Declaration of policy.
Sec. 3. Definitions.
Sec. 4. Agreements within scope of Act.
Sec. 5. Agreements.
Sec. 6. Action on agreements.
Sec. 7. Exemption from antitrust laws.
Sec. 8. Tariffs.
Sec. 9. Controlled carriers.
Sec. 10. Prohibited acts.
Sec. 11. Complaints, investigations, reports, and reparations.
Sec. 12. Subpenas and discovery.
Sec. 13. Penalties.
Sec. 14. Commission orders.
Sec. 15. Reports and certificates.
Sec. 16. Exemptions.
Sec. 17. Regulations.
Sec. 18. Agency reports and advisory commission.                     •"'•
Sec. 19. Ocean freight forwarders.
Sec. 20. Repeals and conforming amendments.
Sec. 21. Effective date.
Sec. 22. Compliance with Budget Act.
SEC. 2. DECLARATION OF POLICY.                                                    17oY^^ ^^^
  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.
SEC. 3. DEFINITIONS.                                                              17oi^^ ^^^'
   As used in this Act—
       (1) "^reement" means an understanding, arrangement, or
    association (written or oral) and any modification or cancella-
    tion thereof; but the term does not include a maritime labor
       (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 15 use i.
     Stat. 730), as amended; the Federal Trade Commission Act (38 15 use 12.

98 STAT. 68 PUBLIC LAW 98-237—MAR. 20, 1984 15 use 41. Stat. 717), as amended; sections 73 and 74 of the Act of August 15 use 8. 9. 27,1894 (28 Stat. 570), as amended; the Act of June 19,1936 (ch. 15 use 13. 592, 49 Stat. 1526), as amended; the Antitrust Civil Process Act 15 ysc 1311 (76 Stat. 548), as amended; and amendments and Acts supple- note. mentary thereto. (3) "assessment agreement" means an agreement, whether part of a collective-bargaining agreement or negotiated sepa- rately, to the extent that it provides for the funding of collec- tively 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. (7) "conference" means an association of ocean common carri- ers 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, pool- ing, sailing, or transshipment arrangement. (8) "controlled carrier" means an ocean common carrier that is, or whose operating assets are, directly or indirectly, owned or ;.o;' controlled by 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 disap- prove 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 .n-^e 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. (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. (11) "forest products" means forest products in an unfinished or semifinished state that require special handling moving in
PUBLIC LAW 98-237—MAR. 20, 1984 98 STAT. 69 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. (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. (13) "inland portion" means the charge to the public by a common carrier for the nonocean portion of through transportation. (14) "loyalty contract" means a contract with an ocean common carrier or 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. (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. , . (16) "maritime labor agreement" means a collective-bargain- '"'" ;;.' ing 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 agree- ment preparatory to such a collective-bargaining agreement among members of a multiemployer bargaining group, or an agreement specifically implementing provisions of such a collec- tive-bargaining agreement or providing for the formation, fi- nancing, 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. (18) "ocean common carrier" means a vessel-operating common carrier; but the term does not include one engaged in ocean transportation by ferry boat or ocean tramp. (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 ac- tivities incident to those shipments. (20) "person" includes individuals, corporations, partnerships, and associations existing under or authorized by the laws of the United States or of a foreign country. (21) "service contract" means a contract between a shipper and an ocean common carrier or conference in which the ship- per makes a commitment to provide a certain minimum quan- tity 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 con- tract may also specify provisions in the event of nonperform- ance on the part of either party.
98 STAT. 70 PUBLIC LAW 98-237—MAR. 20, 1984 (22) "shipment" means all of the cargo carried under the terms of a single bill of lading. (23) "shipper" means an owner or person for whose account the ocean transportation of cargo is provided or the person to whom delivery is to be made. (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. (25) "through rate" means the single amount charged by a common carrier in connection with through transportation. (26) "through transportation" means contmuous transporta- tion between origin and destination for which a through rate is gissessed 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. (27) "United States" includes the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Common- wealth of the Northern Marianas, and all other United States territories and possessions. 46 u s e app. SEC. 4. AGREEMENTS WITHIN SCOPE OF ACT. '* 1703. (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 condi- tions 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 (7) regulate or prohibit their use of service contracts. (b) MARINE TERMINAL OPERATORS.—This Act applies to agree- ments (to the extent the agreements involve ocean transportation in the foreign commerce of the United States) Eimong 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 (2) engage in exclusive, preferential, or cooperative working arrangements. (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. 46 u s e app. SEC. 5. AGREEMENTS. (a) FiuNG REQUIREMENTS.—A true copy of every agreement entered into with respect to an activity described in section 4 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
J ^ • • , • ' PUBLIC LAW 98-237—MAR. 20, 1984 98 STAT. 71 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 neces- sary 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 member- ' : ,- ship upon reasonable notice without penalty; ' '^^ ' (4) at the request of any member, require an independent '' y'; neutral body to police fully the obligations of the conference and ^'"'' its members; (5) prohibit the conference from engaging in conduct prohib- ited by section 10(c) (1) or (3) of this Act; js, .* (6) provide for a consultation process designed to promote— (A) commercial resolution of disputes, and (B) cooperation with shippers in preventing and eliminat- ing 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 J 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 confer- ence 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. (c) 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) 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
• # 98 STAT. 72 PUBLIC LAW 98-237—MAR. 20, 1984 to the assessment or charge, in which case reparation may be awarded. Except for this subsection and section 7(a) of this Act, this 46 u s e app. 801 Act, the Shipping Act, 1916, and the Intercoastal Shipping Act, 1933, et seq., 843. do not apply to assessment agreements. (e) MARITIME LABOR AGREEMENTS.—This Act, the Shipping Act, 1916, and the Intercoastal Shipping Act, 1933, do not apply to maritime labor agreements. This subsection does not exempt from this Act, the Shipping Act, 1916, or the Intercoastal Shipping Act, 1933, any rates, charges, regulations, or practices of a common carrier that are required to be set forth in a tariff, whether or not those rates, charges, regulations, or practices arise out of, or are otherwise related to, a maritime labor agreement. 46 u s e app. SEC. 6. ACTION ON AGREEMENTS. 1705. Federal (a) NOTICE.—Within 7 days after an agreement is filed, the Com- Register, mission shall transmit a notice of its filing to the Federal Register publication. for publication. (b) REVIEW STANDARD.—The Commission shall reject any agree- ment 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 Commis- sion under subsection (b), agreements, other than assessment agree- ments, 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 Com- mission receives— (A) all the additional information and documentary mate- rial requested; or (B) if the request is not fully complied with, the informa- tion 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 docu- mentary 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 competi- tion, to produce an unreasonable reduction in transportation service or an unreasonable increase in transportation cost, it may, after
PUBLIC LAW 98-237—MAR. 20, 1984 98 STAT. 73 notice to the person filing the agreement, seek appropriate injunc- tive 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 unreason- able increase in transportation cost, may enter a permanent injunc- tion. 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 submis- sion 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 agree- ment 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 administra- tive or judicial action or proceeding. This section does not prevent disclosure to either body of Congress or to a duly authorized commit- tee or subcommittee of Congress, is' ' •'-I-' (k) REPRESENTATION.—Upon notice to the Attorney General, the ;' Commission may represent itself in district court proceedings under J' 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. SEC. 7. EXEMPTION FROM ANTITRUST LAWS. f LV^^ ^PP 1 (Ob. (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 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;
98 STAT. 74 PUBLIC LAW 98-237—MAR. 20, 1984 -Dfij (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(eX2) of this Act, any agreement, modification, or cancellation approved by the Commission before the effective date of this Act under section 15 of the 97 Stat. 500. Shipping Act, 1916, or permitted under section 14b thereof, and any properly published tariff, rate, fare, or charge, classifica- tion, rule, or regulation explanatory thereof implementing that argeement, modification, or cancellation. (b) EXCEPTIONS.—This Act does not extend antitrust immunity— (1) to any £igreement with or among air carriers, rail carriers, motor carriers, or common carriers by water not subject to this Act with lespect 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. (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), or obtain injunctive relief under section 16 of that Act (15 U.S.C. 26), for conduct prohibited by this Act. 46USCapp. SEC. 8. TARIFFS. Public (a) IN GENERAL.— availability. (1) Except with regard to bulk cargo, forest products, recycled metal scrap, waste paper, and paper waste, each common car- rier and conference shall file with the Commission, and keep open to public inspection, 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 .qqi5fcUu h a s been established. However, common carriers shall not be 'MVi required to state separately or otherwise reveal in tariff filings 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 compensa- tion, if any, by a carrier or conference; (D) state separately each terminal or other charge, privi- lege, or facility under the control of the carrier or confer- ence 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 evi- dencing the transportation agreement. (2) Copies of tariffs shall be made available to any person, and a reasonable charge may be assessed for them.
PUBLIC LAW 98-237—MAR. 20, 1984 98 STAT. 75 (b) TIME-VOLUME RATES.—Rates shown in tariffs filed under sub- section (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' associ- ation subject to the requirements of this Act. Except for service Confidentiality. contracts dealing with bulk cargo, forest products, recycled metal Public scrap, waste paper, or paper waste, each contract entered into under availability. 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; i i (6) service commitments; and f (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. (d) 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. The Commis- sion, for good cause, may allow such a new or initial rate or change to become effective in less than 30 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 a new 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 that sets forth the rate on which the refund or waiver would be based; (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 Commis- sion 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) 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
98 STAT. 76 PUBLIC LAW 98-237—MAR. 20, 1984 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. 46 u s e app. SEC. 9. CONTROLLED CARRIERS. (a) CONTROLLED CARRIER RATES.—No controlled carrier subject to this section may maintain rates or charges in its tariffs filed with the Commission that are below a level that is just and reasonable, nor may any such carrier establish or maintain unjust or unreason- able classifications, rules, or regulations in those tariffs. 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 any rates, charges, classifications, rules, or regulations that the controlled carrier has failed to demonstrate to be just and reason- able. In a proceeding under this subsection, the burden of proof is on the controlled carrier to demonstrate that its rates, charges, classifi- cations, 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 are void and their use is unlawful. (b) RATE STANDARDS.—For the purpose of this section, in determin- ing 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) the rates or charges which have been filed 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 con- structive costs, which are hereby defined as the costs of another carrier, other than a controlled carrier, operating similar ves- sels and equipment in the same or a similar trade; (2) the rates, charges, classifications, rules, or regulations are the same as or similar to those filed or assessed by other carriers in the same trade; (3) the rates, charges, classifications, rules, or regulations are , required to eissure movement of particular cargo in the trade; or (4) 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, the rates, charges, classifications, rules, or regulations of controlled carriers may not, without special permission of the Com- mission, become effective sooner than the 30th day after the date of filing with the Commission. 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 Com- mission may reasonably base its determination of the lawfulness thereof. (d) DISAPPROVAL OF RATES.—Whenever the Commission is of the opinion that the rates, charges, classifications, rules, or regulations
PUBLIC LAW 98-237—MAR. 20, 1984 98 STAT. 7'> filed by a controlled carrier may be unjust and unreasonable, the Commission may issue an order to the controlled carrier to show cause why those rates, charges, classifications, rules, or regulations should not be disapproved. 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, classifica- tions, 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 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, classi- fications, rules, or regulations under this subsection, the affected carrier may file new rates, charges, classifications, rules, or regula- tions to take effect immediately during the suspension period in lieu of the suspended rates, charges, classifications, rules, or regula- tions—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 of rates, charges, classifi- cations, 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. Not- withstanding any other law, the Commission shall immediately grant the request by the issuance of an order in which the Presi- dent's request shall be described. During any such stay, the Presi- dent 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; (2) a controlled carrier of a state which, on the effective date of this section, has subscribed to the statement of shipping policy contained in note 1 to annex A of the Code of Liberaliza- tion of Current Invisible Operations, adopted by the Council of 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 govern- ing 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) a trade served exclusively by controlled carriers. SEC. 10. PROHIBITED ACTS. 1709^^ ^^^ (a) IN GENERAL.—No person may—
98 STAT. 78 PUBLIC LAW 98-237—MAR. 20, 1984 ^-ti (1) knowingly and willfully, directly or indirectly, by means of false billing, false clEissification, false weighing, false report of weight, false measurement, or by any other unjust or unfair device or means obtain or attempt to obtain ocean transporta- tion 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 heis 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 differ- ent 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) 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 classifi- cation, false weighing, false measurement, or by any other unjust or unfair device or means; (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; (6) except for service contracts, engage in any unfair or unjustly discriminatory practice in the matter of— (A) rates; (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; i (7) employ any fighting ship; (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 quE '«jJ^ ^+ unreasonable prejudice or disadvantage in any respect whatso- ever;
PUBLIC LAW 98-237—MAR. 20, 1984 98 STAT. 79 (13) refuse to negotiate with a shippers' association; or (14) knowingly disclose, offer, solicit, or receive any informa- tion concerning the nature, kind, quantity, destination, con- signee, or routing of any property tendered or delivered to a common carrier without the consent of the shipper or consignee T if that information— (A) may be used to the detriment or prejudice of the 1 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 (14) shall be construed to prevent providing such information, in response to legal process, to the United States, 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 ,q»'f»> 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 confer- ence, 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 confer- ence 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 nonocean carrier or group of nonocean 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 nonocean carriers: 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 or limit that com- pensation 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.
98 STAT. 80 PUBLIC LAW 98-237—MAR. 20, 1984 (d) COMMON CARRIERS, OCEAN FREIGHT FORWARDERS, AND MARINE TERMINAL OPERATORS.— (1) No common carrier, ocean freight forwarder, 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 serv- ices to, any common carrier or ocean tramp. (3) The prohibitions in subsection (b) (11), (12), and (14) of this section apply to marine terminal operators. (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. 46 u s e app. SEC. 11. COMPLAINTS, INVESTIGATIONS, REPORTS, AND REPARATIONS. (a) FiuNG OF COMPLAINTS.—Any person may file with the Commis- sion 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 Commis- sion 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 Commis- sion shall investigate it in an appropriate manner and make an appropriate order. (c) COMMISSION INVESTIGATIONS.—The Commission, upon com- plaint 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 initi- ation 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 subsec- tion (d), the Commission determines that it is unable to issue a final decision because of undue delays caused by a party to the proceed- ings, 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
PUBLIC LAW 98-237—MAR. 20, 1984 98 STAT. 81 complainant and after notice and hearing, direct payment of repara- tions 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) or section 10(c) (1) or (4) 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) 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 injunc- tion 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 sub- section (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 Commis- sion 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. SEC. 12. SUBPENAS AND DISCOVERY. 46 USC app. 1711. (a) I N GENERAL.—In investigations and adjudicatory proceedings under this Act— (1) depositions, written interrogatories, and discovery proce- dures 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 subpena 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. 31-194 0 - 86 - 5 : QL. 3 P a r t 1
98 STAT. 82 PUBLIC LAW 98-237—MAR. 20, 1984 46 u s e app. SEC. 13. PENALTIES. 1712. (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. (b) ADDITIONAL PENALTIES.— (1) For a violation of section 10(b) (1), (2), (3), (4), or (8) 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 subpena under section 12 of this Act, the Commis- sion 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 car- riage 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, 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. (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) of this subsection. President. (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 oppor- tunity 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 'It
PUBLIC LAW 98-237—MAR. 20, 1984 98 STAT. 83 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 u s e 2341 (e) FAILURE TO PAY ASSESSMENT.—If a person fails to pay an et seq. assessment of a civil penalty after it has become final or after the appropriate court has entered final judgment in favor of the Com- mission, 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 (aXD, Ot>)(l), or (b)(4) of this Act, or to defraud the Commission by concealment of such a violation. (2) Each proceeding to £issess a civil penalty under this section shall be commenced within 5 years from the date the violation occurred. SEC. 14. COMMISSION ORDERS. 46 u s e app. 1713. (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 applica- tion 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 viola- tion 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 Prima facie Commission shall be prima facie evidence of the facts therein stated, evidence. 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
98 STAT. 84 PUBLIC LAW 98-237—MAR. 20, 1984 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. 46 u s e app. SEC. 15. REPORTS AND CERTIFICATES. 1714. (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 execu- tive officer of each common carrier and, to the extent it deems feasible, may require any shipper, shippers' association, marine terminal operator, ocean freight forwarder, 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. Failure to file a certification shall result in a civil penalty of not more than $5,000 for each day the violation continues. 46 u s e app. SEC. 16. EXEMPTIONS. 1715. „,, ^ . . ,. . 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 substantially impair effective regulation by the Commission, be unjustly discriminatory, result in a substantial reduction in compe- tition, or be detrimental to commerce. The Commission may attach conditions to any exemption and may, by order, revoke any exemp- tion. No order or rule of exemption or revocation of exemption may be issued unless opportunity for hearing has been afforded inter- ested persons and departments and agencies of the United States. 46 u s e app. SEC. 17. REGULATIONS. 1716 (a) The Commission may prescribe rules and regulations as neces- sary to carry out this Act.
PUBLIC LAW 98-237—MAR. 20, 1984 98 STAT. 85 (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 require- ments 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. SEC. 18. AGENCY REPORTS AND ADVISORY COMMISSION. 46 u s e app. 1717. (a) COLLECTION OF DATA.—For a period of 5 years following the enactment of this Act, the Commission shall collect and analyze information concerning the impact of this Act upon the interna- tional 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 serv- ices available to specific ports or geographic regions; (3) the number and strength of independent carriers in var- ious 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 Commis- sion 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.— Advisory (1) Effective 5 V2 years after the date of enactment of this Act, Commission on Conferences there is established the Advisory Commission on Conferences in in Ocean Ocean Shipping (hereinafter referred to as the "Advisory Shipping. Commission ). (2) The Advisory Commission shall be composed of 17 mem- bers as follows: (A) a cabinet level official appointed by the President;
98 STAT. 86 PUBLIC LAW 98-237—MAR. 20, 1984 (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 Commit- tee on the Judiciary; (C) 4 members from the United States House of Repre- sentatives 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 Advi- sory 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 consti- tute a quorum, but the Advisory Commission may permit as few as 2 members to hold hearings. (e) COMPENSATION OP 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 reim- bursed 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, when engaged in the performance of the duties vested in the Advisory Commission, plus reimbursement for reasonable travel, subsist- ence, 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. (3) Members of the Advisory Commission appointed from the private sector are not subject to section 208 of title 18, United States Code. Before commencing service, these members shall file with the Advisory Commission a statement disclosing their financial interests and business and former relationships involv- ing 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 specifi- cally address whether the Nation would be best served by prohibit- ing 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
PUBLIC LAW 98-237—MAR. 20, 1984 98 STAT. 87 witnesses, and the production of such books, records, corre- spondence, memorandums, papers, and documents as the Advi- sory Commission may deem advisable. Subpenas may be issued Subpenas. to any person within the jurisdiction of the United States courts, under the signature of the chairman, or any duly desig- nated 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 Commis- sion 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 Com- mission, 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 £is 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 re- quest 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 Com- mission, 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, may accept, hold, and administer gifts from 96 Stat. 923. 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 Commission shall, within 1 year after its establishment, 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 recom- mendation made by the Advisory Commission to the President and to the Congress must have the majority vote of the Advisory Com- mission 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. SEC. 19. OCEAN FREIGHT FORWARDERS. 46 USC app. 1718 (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—
98 STAT. 88 PUBLIC LAW 98-237—MAR. 20, 1984 (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. (b) SUSPENSION OR REVOCATION.—The Commission shall, after notice and hearing, suspend of revoke a license if it finds that the ocean freight forwarder is not qualified to render forwarding serv- ices or that it willfully failed to comply with a provision of this Act or with a lawful order, rule, or regulation of the Commission. The Commission may also revoke a forwarder's license for failure to maintain a bond in accordance with subsection (a)(2). (c) EXCEPTION.—A person whose primary business is the sale of merchandise may forward shipments of the merchandise for its own account without a license. (d) COMPENSATION OF FORWARDERS BY CARRIERS.— (1) A common carrier may compensate an ocean freight for- warder in connection with a shipment dispatched on behalf of others only when the ocean freight forwarder has certified in writing that it holds a valid license and has performed the following services: (A) Engaged, booked, secured, reserved, or contracted directly with the carrier or its agent for space aboard a vessel or confirmed the availability of that space. (B) Prepared and processed the ocean bill of lading, dock receipt, or other similar document with respect to the shipment. (2) No common carrier may pay compensation for services described in paragraph (1) more than once on the same shipment. (3) No compensation may be paid to an ocean freight for- warder except in accordance with the tariff requirements of this Act. (4) No ocean freight forwarder may receive compensation from a common carrier with respect to a shipment in which the forwarder has a direct or indirect beneficial interest nor shall a common carrier knowingly pay compensation on that shipment. SEC. 20. REPEALS AND CONFORMING AMENDMENTS. (a) REPEALS.—The laws specified in the following table are repealed: Shipping Act, 1916: Sec. 13 39 Stat. 732 Sec. 14a 46 App. U.S.C. 813 Sec. 14b 46 App. U.S.C. 813a Sec. 18(b) 46 App. U.S.C. 817(b) Sec. 18(c) 46 App. U.S.C. 817(c) Sec. 26 46 App. U.S.C. 825 Sec. 44 46 App. U.S.C. 841b Merchant Marine Act, 1920: Sec. 20 41 Stat. 996 Merchant Marine Act, 1936: Sec. 212(e) 46 App. U.S.C. 1122(e)
PUBLIC LAW 98-237—MAR. 20, 1984 98 STAT. 89 Sec. 214 46 App. U.S.C. 1124, wherever that section applies to the Federal Maritime Commis- sion (Commission), any member of the Commission or any member, officer or employee designated by the Commission. Omnibus Budget Reconciliation Act of 1981: Sec. 1608 95 Stat. 752 46 u s e app. 801, 801 notes. (b) CONFORMING AMENDMENTS.—The Shipping Act, 1916 (46 App. U.S.C. 801 et seq.), is amended as follows: (1) in section 1 by striking the definitions "controlled carrier" 46 u s e app. 801. and "independent ocean freight forwarder"; (2) in sections 14, 15, 16, 20, 21(a), 22, and 45 by striking 46 u s e app. 812, "common carrier by water" wherever it appears in those sec- 814, 815, 819, 820, 821, 841c. tions and substituting "common carrier by water in interstate commerce"; (3) in section 14, first paragraph, by striking "or a port of a foreign country"; (4) in section 14, last paragraph, by striking all after the words "for each offense" and substituting a period; (5) in section 15, fourth paragraph, by striking "(including changes in special rates and charges covered by section 14b of this Act which do not involve a change in the spread between such rates and charges and the rates and charges applicable to noncontract shippers)" and also "with the publication and filing requirements of section 180t)) hereof and"; ' (6) in section 15, sixth paragraph, by striking ", or permitted under section 14b," and in the seventh paragraph, by striking "or of section 14b"; (7) in section 16, in the paragraph designated "First", by striking all after "disadvantage in any respect" and substituting "whatsoever."; (8) in section 17 by striking the first paragraph, and in the 46 u s e app. 816. second paragraph, by striking "such carrier and every"; (9) in section 210t)) by striking "The Commission shall require the chief executive officer of every vessel operating common carrier by water in foreign commerce and to the extent it deems feasible, may require any shipper, consignor, consignee, for- warder, broker, other carrier or other person subject to this Act," and substituting "The Commission may, to the extent it deems feasible, require any shipper, consignor, consignee, for- warder, broker, or other person subject to this Act."; (10) in section 22 by striking subsection (c); (11) in section 25, at the end of the first sentence, by adding 46 u s e app. 824. "under this Act"; (12) in section 29 by striking "any order of the board, the 46 u s e app. 828. board," and substituting "any order of the Federal Maritime Commission under this Act, the Commission,"; (13) in sections 30 and 31, after the words "any order of the 46 u s e app. 829, board", by adding "under this Act,"; 830. (14) in section 32(a) by striking "and section 44"; and 46 u s e app. 831. (15) in section 32(c), after the words "or functions,", by adding "under this Act,".
98 STAT. 90 PUBLIC LAW 98-237—MAR. 20, 1984 (c) TECHNICAL AMENDMENTS.—Section 212 of the Merchant Marine Act, 1936 (46 App. U.S.C. 1122) is amended b y - CD striking after subsection (d) the following undesignated paragraph: "The Federal Maritime Commission is authorized and di- rected—"; and (2) striking after subsection (e) the following undesignated paragraph: "The Secretary of Transportation is authorized and directed—". 46 use app. (d) EFFECTS ON CERTAIN AGREEMENTS AND CONTRACTS.—All agree- I'^l^- ments, contracts, modifications, and exemptions previously approved or licenses previously issued by the Commission shall continue in force and effect as if approved or issued under this Act; and all new agreements, contracts, and modifications to existing, pending, or new contracts or agreements shall be considered under this Act. 46 use app. (e) SAVINGS PROVISIONS.— ^^^^- (1) Each service contract entered into by a shipper and an ocean common carrier or conference before the date of enact- ment of this Act may remain in full force and effect and need not comply with the requirements of section 8(c) of this Act until 15 months after the date of enactment of this Act. (2) This Act and the amendments made by it shall not affect any suit— (A) filed before the date of enactment of this Act; or (B) with respect to claims arising out of conduct engaged in before the date of enactment of this Act, filed within 1 year after the date of enactment of this Act. 46 u s e app. 1701 SEC. 21. EFFECTIVE DATE. This Act shall become effective 90 days after the date of its enactment, except that sections 17 and 18 shall become effective upon enactment. 46 u s e app. SEC. 22. COMPLIANCE WITH BUDGET ACT. 1720. Any new spending authority (within the meaning of section 401 of 2 use 651. the Congressional Budget and Impoundment Control Act of 1974)
PUBLIC LAW 98-237—MAR. 20, 1984 98 STAT. 91 which is provided under this Act shall be effective for any fiscal year only to the extent or in such amounts as provided in advance in appropriations Acts. Any provision of this Act that authorizes the enactment of new budget authority shall be effective only for fiscal years beginning after September 30, 1984. Approved March 20, 1984. LEGISLATIVE HISTORY—S. 47 (S. 504) (H.R. 1878): HOUSE REPORTS: No. 98-53, Pt. 1 (Comm. on Merchant Marine and Fisheries) and Pt. 2 (Comm. on the Judiciary) both accompanying H.R. 1878 and No. 98-600 (Comm. of Conference). SENATE REPORT No. 98-3 accompanying S. 504 (Comm. on Commerce, Science, and Transportation). CONGRESSIONAL RECORD: Vol. 129 (1983): Feb. 22-24, 28, Mar. 1, considered and passed Senate. Oct. 17, H.R. 1878 considered and passed House; S. 47, amended, passed in lieu. Vol. 130 (1984): Feb. 23, Senate agreed to conference report. Mar. 6, House agreed to conference report.