[105th Congress Public Law 258]
[From the U.S. Government Printing Office]
<DOC>
[DOCID: f:publ258.105]
[[Page 1901]]
OCEAN SHIPPING REFORM ACT OF 1998
[[Page 112 STAT. 1902]]
Public Law 105-258
105th Congress
An Act
To amend the Shipping Act of 1984 to encourage competition in
international shipping and growth of United States exports, and for
other purposes. <<NOTE: Oct. 14, 1998 - [S. 414]>>
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, <<NOTE: Ocean Shipping
Reform Act of 1998.>>
SECTION 1. SHORT TITLE. <<NOTE: 46 USC app. 1701 note.>>
This Act may be cited as the ``Ocean Shipping Reform Act of 1998''.
SEC. 2. EFFECTIVE DATE. <<NOTE: 46 USC app. 1701 note.>>
Except as otherwise expressly provided in this Act, this Act and the
amendments made by this Act take effect May 1, 1999.
TITLE I--AMENDMENTS TO THE SHIPPING ACT OF 1984
SEC. 101. PURPOSE.
Section 2 of the Shipping Act of 1984 (46 U.S.C. App. 1701) is
amended by--
(1) striking ``and'' after the semicolon in paragraph (2);
(2) striking ``needs.'' in paragraph (3) and inserting
``needs; and'';
(3) adding at the end thereof the following:
``(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.''.
SEC. 102. DEFINITIONS.
Section 3 of the Shipping Act of 1984 (46 U.S.C. App. 1702) is
amended by--
(1) striking ``the government under whose registry the
vessels of the carrier operate;'' in paragraph (8) and inserting
``a government;'';
(2) striking paragraph (9) and inserting the following:
``(9) `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.'';
[[Page 112 STAT. 1903]]
(3) striking paragraph (10) and redesignating paragraphs
(11) through (27) as paragraphs (10) through (26);
(4) striking ``in an unfinished or semifinished state that
require special handling moving in lot sizes too large for a
container,'' in paragraph (10), as redesignated;
(5) striking ``paper board in rolls, and paper in rolls.''
in paragraph (10) as redesignated and inserting ``paper and
paper board in rolls or in pallet or skid-sized sheets.'';
(6) striking ``conference, other than a service contract or
contract based upon time-volume rates,'' in paragraph (13) as
redesignated and inserting ``agreement'';
(7) striking ``conference.'' in paragraph (13) as
redesignated and inserting ``agreement and the contract provides
for a deferred rebate arrangement.'';
(8) striking ``carrier.'' in paragraph (14) as redesignated
and inserting ``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.'';
(9) striking paragraph (16) as redesignated and
redesignating paragraphs (17) through (26) as redesignated as
paragraphs (16) through (25), respectively;
(10) striking paragraph (17), as redesignated, and inserting
the following:
``(17) `ocean transportation intermediary' means an ocean
freight forwarder or a non-vessel-operating common carrier. For
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.'';
(11) striking paragraph (19), as redesignated and inserting
the following:
``(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.''; and
(12) striking paragraph (21), as redesignated, and inserting
the following:
``(21) `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;
[[Page 112 STAT. 1904]]
``(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.''.
SEC. 103. AGREEMENTS WITHIN THE SCOPE OF THE ACT.
(a) Ocean Common Carriers.--Section 4(a) of the Shipping Act of 1984
(46 U.S.C. App. 1703(a)) is amended by--
(1) striking ``operators or non-vessel-operating common
carriers;'' in paragraph (5) and inserting ``operators;'';
(2) striking ``and'' in paragraph (6) and inserting ``or'';
and
(3) striking paragraph (7) and inserting the following:
``(7) discuss and agree on any matter related to service
contracts.''.
(b) Marine Terminal Operators.--Section 4(b) of that Act (46 U.S.C.
App. 1703(b)) is amended by--
(1) striking ``(to the extent the agreements involve ocean
transportation in the foreign commerce of the United States)'';
(2) striking ``and'' in paragraph (1) and inserting ``or'';
and
(3) striking ``arrangements.'' in paragraph (2) and
inserting ``arrangements, to the extent that such agreements
involve ocean transportation in the foreign commerce of the
United States.''.
SEC. 104. AGREEMENTS.
(a) In General.--Section 5 of the Shipping Act of 1984 (46 U.S.C.
App. 1704) is amended by--
(1) striking subsection (b)(8) and inserting the following:
``(8) 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;
(2) redesignating subsections (c) through (e) as subsections
(d) through (f); and
(3) inserting after subsection (b) the following:
``(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 or
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
[[Page 112 STAT. 1905]]
or agreement members' service contracts if the guidelines explicitly
state the right of members of the agreement not to follow the
guidelines. <<NOTE: Confidentiality.>> These guidelines shall be
confidentially submitted to the Commission.''.
(b) Application.--
(1) Subsection (e) of section 5 of that Act, <<NOTE: 46 USC
app. 1704.>> as redesignated, is amended by striking ``this Act,
the Shipping Act, 1916, and the Intercoastal Shipping Act, 1933,
do'' and inserting ``this Act does''; and
(2) Subsection (f) of section 5 of that Act, as
redesignated, is amended by--
(A) striking ``and the Shipping Act, 1916, do'' and
inserting ``does'';
(B) striking ``or the Shipping Act, 1916,''; and
(C) inserting ``or are essential terms of a service
contract'' after ``tariff''.
SEC. 105. EXEMPTION FROM ANTITRUST LAWS.
Section 7 of the Shipping Act of 1984 (46 U.S.C. App. 1706) is
amended by--
(1) inserting ``or publication'' in paragraph (2) of
subsection (a) after ``filing'';
(2) striking ``or'' at the end of subsection (b)(2);
(3) striking ``States.'' at the end of subsection (b)(3) and
inserting ``States; or''; and
(4) adding at the end of subsection (b) the following:
``(4) to any loyalty contract.''.
SEC. 106. TARIFFS.
(a) In General.--Section 8(a) of the Shipping Act of 1984 (46 U.S.C.
App. 1707(a)) is amended by--
(1) inserting ``new assembled motor vehicles,'' after
``scrap,'' in paragraph (1);
(2) striking ``file with the Commission, and'' in paragraph
(1);
(3) striking ``inspection,'' in paragraph (1) and inserting
``inspection in an automated tariff system,'';
(4) striking ``tariff filings'' in paragraph (1) and
inserting ``tariffs'';
(5) striking ``freight forwarder'' in paragraph (1)(C) and
inserting ``transportation intermediary, as defined in section
3(17)(A),'';
(6) striking ``and'' at the end of paragraph (1)(D);
(7) striking ``loyalty contract,'' in paragraph (1)(E);
(8) striking ``agreement.'' in paragraph (1)(E) and
inserting ``agreement; and'';
(9) adding at the end of paragraph (1) the following:
``(F) include copies of any loyalty contract,
omitting the shipper's name.''; and
(10) striking paragraph (2) and inserting the following:
``(2) 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) Service Contracts.--Subsection (c) of that section is amended to
read as follows:
``(c) Service Contracts.--
[[Page 112 STAT. 1906]]
``(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) <<NOTE: Confidentiality.>> 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) <<NOTE: Public information.>> 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 transportation
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; and
``(iv) the assignment of container freight
station work and container maintenance and repair
work performed at a dock area or within the port
area.
``(B) The common carrier shall provide the
information described in subparagraph (A) of this
paragraph to the
[[Page 112 STAT. 1907]]
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 lawfulness or unlawfulness under this Act,
the National Labor Relations Act, the Taft-Hartley Act,
the Federal Trade Commission 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.''.
(c) Rates.--Subsection (d) of that section is amended by--
(1) striking the subsection caption and inserting ``(d)
Tariff Rates.--'';
(2) striking ``30 days after filing with the Commission.''
in the first sentence and inserting ``30 calendar days after
publication.'';
(3) inserting ``calendar'' after ``30'' in the next
sentence; and
(4) striking ``publication and filing with the Commission.''
in the last sentence and inserting ``publication.''.
(d) Refunds.--Subsection (e) of that section is amended by--
(1) striking ``tariff of a clerical or administrative nature
or an error due to inadvertence'' in paragraph (1) and inserting
a comma; and
(2) striking ``file a new tariff,'' in paragraph (1) and
inserting ``publish a new tariff, or an error in quoting a
tariff,'';
(3) striking ``refund, filed a new tariff with the
Commission'' in paragraph (2) and inserting ``refund for an
error in a tariff or a failure to publish a tariff, published a
new tariff'';
(4) inserting ``and'' at the end of paragraph (2); and
(5) striking paragraph (3) and redesignating paragraph (4)
as paragraph (3).
(e) Marine Terminal Operator Schedules.--Subsection (f) of that
section is amended to read as follows:
``(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
[[Page 112 STAT. 1908]]
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.''.
(f) Automated Tariff System Requirements; Form.--Section 8 of that
Act <<NOTE: 46 USC app. 1707.>> is amended by adding at the end the
following:
``(g) Regulations.--The Commission shall by regulation prescribe the
requirements for the accessibility 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).
The <<NOTE: Publication.>> Commission shall by regulation prescribe the
form and manner in which marine terminal operator schedules authorized
by this section shall be published.''.
SEC. 107. AUTOMATED TARIFF FILING AND INFORMATION SYSTEM.
Section 502 of the High Seas Driftnet Fisheries Enforcement Act (46
U.S.C. App. 1707a) is repealed.
SEC. 108. CONTROLLED CARRIERS.
Section 9 of the Shipping Act of 1984 (46 U.S.C. App. 1708) is
amended by--
(1) striking ``service contracts filed with the Commission''
in the first sentence of subsection (a) and inserting ``service
contracts, or charge or assess rates,'';
(2) striking ``or maintain'' in the first sentence of
subsection (a) and inserting ``maintain, or enforce'';
(3) striking ``disapprove'' in the third sentence of
subsection (a) and inserting ``prohibit the publication or use
of''; and
(4) striking ``filed by a controlled carrier that have been
rejected, suspended, or disapproved by the Commission'' in the
last sentence of subsection (a) and inserting ``that have been
suspended or prohibited by the Commission'';
(5) striking ``may take into account appropriate factors
including, but not limited to, whether--'' in subsection (b) and
inserting ``shall take into account whether the rates or charges
which have been 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. For 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. The Commission may
also take into account other appropriate factors, including but
not limited to, whether--'';
(6) striking paragraph (1) of subsection (b) and
redesignating paragraphs (2), (3), and (4) as paragraphs (1),
(2), and (3), respectively;
(7) striking ``filed'' in paragraph (1) as redesignated and
inserting ``published or assessed'';
(8) striking ``filing with the Commission.'' in subsection
(c) and inserting ``publication.'';
(9) <<NOTE: Deadline.>> striking ``Disapproval of Rates.--''
in subsection (d) and inserting ``Prohibition of Rates.--Within
120 days after the receipt of information requested by the
Commission under
[[Page 112 STAT. 1909]]
this section, the Commission shall determine whether the rates,
charges, classifications, rules, or regulations of a controlled
carrier may be unjust and unreasonable.'';
(10) striking ``filed'' in subsection (d) and inserting
``published or assessed'';
(11) striking ``may issue'' in subsection (d) and inserting
``shall issue'';
(12) striking ``disapproved.'' in subsection (d) and
inserting ``prohibited.'';
(13) striking ``60'' in subsection (d) and inserting ``30'';
(14) inserting ``controlled'' after ``affected'' in
subsection (d);
(15) striking ``file'' in subsection (d) and inserting
``publish'';
(16) striking ``disapproval'' in subsection (e) and
inserting ``prohibition'';
(17) inserting ``or'' after the semicolon in subsection
(f)(1);
(18) striking paragraphs (2), (3), and (4) of subsection
(f); and
(19) redesignating paragraph (5) of subsection (f) as
paragraph (2).
SEC. 109. PROHIBITED ACTS.
(a) Section 10(b) of the Shipping Act of 1984 (46 U.S.C. App.
1709(b)) is amended by--
(1) striking paragraphs (1) through (3);
(2) redesignating paragraph (4) as paragraph (1);
(3) inserting after paragraph (1), as redesignated, the
following:
``(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 U.S.C. App. 1710a);'';
(4) redesignating paragraphs (5) and (6) as paragraphs (3)
and (4), respectively;
(5) striking ``except for service contracts,'' in paragraph
(4), as redesignated, and inserting ``for service pursuant to a
tariff,'';
(6) striking ``rates;'' in paragraph (4)(A), as
redesignated, and inserting ``rates or charges;'';
(7) inserting after paragraph (4), as redesignated, the
following:
``(5) for service pursuant to a service contract, engage in
any unfair or unjustly discriminatory practice in the matter of
rates or charges with respect to any port;'';
(8) redesignating paragraphs (7) and (8) as paragraphs (6)
and (7), respectively;
(9) striking paragraph (6) as redesignated and inserting the
following:
``(6) 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;'';
[[Page 112 STAT. 1910]]
(10) striking paragraphs (9) through (13) and inserting the
following:
``(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) redesignating paragraphs (14), (15), and (16) as
paragraphs (11), (12), and (13), respectively;
(12) striking ``a non-vessel-operating common carrier'' in
paragraphs (11) and (12) as redesignated and inserting ``an
ocean transportation intermediary'';
(13) striking ``sections 8 and 23'' in paragraphs (11) and
(12) as redesignated and inserting ``sections 8 and 19'';
(14) striking ``or in which an ocean transportation
intermediary is listed as an affiliate'' in paragraph (12), as
redesignated;
(15) striking ``Act;'' in paragraph (12), as redesignated,
and inserting ``Act, or with an affiliate of such ocean
transportation intermediary;''
(16) striking ``paragraph (16)'' in the matter appearing
after paragraph (13), as redesignated, and inserting ``paragraph
(13)''; and
(17) inserting ``the Commission,'' after ``United States,''
in such matter.
(b) Section 10(c) of the Shipping Act of 1984 (46 U.S.C. App.
1709(c)) is amended by--
(1) striking ``non-ocean carriers'' in paragraph (4) and
inserting ``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'';
(2) striking ``freight forwarder'' in paragraph (5) and
inserting ``transportation intermediary, as defined by section
3(17)(A) of this Act,'';
(3) striking ``or'' at the end of paragraph (5);
(4) striking ``contract.'' in paragraph (6) and inserting
``contract;''; and
(5) adding at the end the following:
``(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;''.
(c) Section 10(d) of the Shipping Act of 1984 (46 U.S.C. App.
1709(d)) is amended by--
(1) striking ``freight forwarders,'' and inserting
``transportation intermediaries,'';
[[Page 112 STAT. 1911]]
(2) striking ``freight forwarder,'' in paragraph (1) and
inserting ``transportation intermediary,'';
(3) striking ``subsection (b)(11), (12), and (16)'' and
inserting ``subsections (b)(10) and (13)''; and
(4) adding at the end thereof the following:
``(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.''.
SEC. 110. COMPLAINTS, INVESTIGATIONS, REPORTS, AND REPARATIONS.
Section 11(g) of the Shipping Act of 1984 (46 U.S.C. App. 1710(g))
is amended by--
(1) striking ``section 10(b)(5) or (7)'' and inserting
``section 10(b)(3) or (6)''; and
(2) striking ``section 10(b)(6)(A) or (B)'' and inserting
``section 10(b)(4)(A) or (B).''.
SEC. 111. FOREIGN SHIPPING PRACTICES ACT OF 1988.
Section 10002 of the Foreign Shipping Practices Act of 1988 (46
U.S.C. App. 1710a) is amended by--
(1) striking `` `non-vessel-operating common carrier','' in
subsection (a)(1) and inserting `` `ocean transportation
intermediary','';
(2) striking ``forwarding and'' in subsection (a)(4);
(3) striking ``non-vessel-operating common carrier'' in
subsection (a)(4) and inserting ``ocean transportation
intermediary services and'';
(4) striking ``freight forwarder,'' in subsections (c)(1)
and (d)(1) and inserting ``transportation intermediary,'';
(5) striking ``filed with the Commission,'' in subsection
(e)(1)(B) and inserting ``and service contracts,'';
(6) inserting ``and service contracts'' after ``tariffs''
the second place it appears in subsection (e)(1)(B); and
(7) striking ``(b)(5)'' each place it appears in subsection
(h) and inserting ``(b)(6)''.
SEC. 112. PENALTIES.
(a) Section 13(a) of the Shipping Act of 1984 (46 U.S.C. App.
1712(a)) is amended by adding at the end thereof the following: ``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 therefore in the
district court of the United States for the district in which it may be
found.''.
(b) Section 13(b) of the Shipping Act of 1984 (46 U.S.C. App.
1712(b)) is amended by--
(1) striking ``section 10(b)(1), (2), (3), (4), or (8)'' in
paragraph (1) and inserting ``section 10(b)(1), (2), or (7)'';
(2) by redesignating paragraphs (4), (5), and (6) as
paragraphs (5), (6), and (7), respectively;
(3) inserting before paragraph (5), as redesignated, the
following:
[[Page 112 STAT. 1912]]
``(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).''; and
(4) striking ``paragraphs (1), (2), and (3)'' in paragraph
(6), as redesignated, and inserting ``paragraphs (1), (2), (3),
and (4)''.
(c) Section 13(f)(1) of the Shipping Act of 1984 (46 U.S.C. App.
1712(f)(1)) is amended by--
(1) striking ``or (b)(4)'' and inserting ``or (b)(2)'';
(2) striking ``(b)(1), (4)'' and inserting ``(b)(1), (2)'';
and
(3) adding at the end thereof the following ``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.''.
SEC. 113. REPORTS AND CERTIFICATES.
Section 15 of the Shipping Act of 1984 (46 U.S.C. App. 1714) is
amended by--
(1) striking ``and certificates'' in the section heading;
(2) striking ``(a) Reports.--'' in the subsection heading
for subsection (a); and
(3) striking subsection (b).
SEC. 114. EXEMPTIONS.
Section 16 of the Shipping Act of 1984 (46 U.S.C. App. 1715) is
amended by striking ``substantially impair effective regulation by the
Commission, be unjustly discriminatory, result in a substantial
reduction in competition, or be detrimental to commerce.'' and inserting
``result in substantial reduction in competition or be detrimental to
commerce.''.
SEC. 115. AGENCY REPORTS AND ADVISORY COMMISSION.
Section 18 of the Shipping Act of 1984 (46 U.S.C. App. 1717) is
repealed.
SEC. 116. OCEAN FREIGHT FORWARDERS.
Section 19 of the Shipping Act of 1984 (46 U.S.C. App. 1718) is
amended by--
(1) striking ``freight forwarders'' in the section caption
and inserting ``transportation intermediaries'';
(2) striking subsection (a) and inserting the following:
``(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.'';
(3) redesignating subsections (b), (c), and (d) as
subsections (c), (d), and (e), respectively;
[[Page 112 STAT. 1913]]
(4) inserting after subsection (a) the following:
``(b) Financial Responsibility.--
``(1) No person may act as an ocean transportation
intermediary unless that person furnishes a bond, proof of
insurance, or other surety 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.
``(2) A bond, insurance, or other surety obtained pursuant
to this section--
``(A) shall be available to pay any order for
reparation issued pursuant to section 11 or 14 of this
Act, or any penalty assessed pursuant to section 13 of
this Act;
``(B) may be available to pay any claim against an
ocean transportation intermediary arising from its
transportation-related activities described in section
3(17) of this Act with the consent of the insured ocean
transportation intermediary and subject to review by the
surety company, or when the claim is deemed valid by the
surety company after the ocean transportation
intermediary has failed to respond to adequate notice to
address the validity of the claim; and
``(C) shall be available to pay any judgment for
damages against an ocean transportation intermediary
arising from its transportation-related activities under
section 3(17) of this Act, provided the claimant has
first attempted to resolve the claim pursuant to
subparagraph (B) of this paragraph and the claim has not
been resolved within a reasonable period of time.
``(3) <<NOTE: Regulations.>> The Commission shall prescribe
regulations for the purpose of protecting the interests of
claimants, ocean transportation intermediaries, and surety
companies with respect to the process of pursuing claims against
ocean transportation intermediary bonds, insurance, or sureties
through court judgments. The regulations shall provide that a
judgment for monetary damages may not be enforced except to the
extent that the damages claimed arise from the transportation-
related activities of the insured ocean transportation
intermediary, as defined by the Commission.
``(4) An ocean transportation intermediary not domiciled in
the United States shall designate a resident agent in the United
States for receipt of service of judicial and administrative
process, including subpoenas.'';
(5) striking, each place such term appears--
(A) ``freight forwarder'' and inserting
``transportation intermediary'';
(B) ``a forwarder's'' and inserting ``an
intermediary's'';
(C) ``forwarder'' and inserting ``intermediary'';
and
(D) ``forwarding'' and inserting ``intermediary'';
(6) striking ``a bond in accordance with subsection
(a)(2).'' in subsection (c), as redesignated, and inserting ``a
bond, proof of insurance, or other surety in accordance with
subsection (b)(1).'';
(7) striking ``Forwarders.--'' in the caption of subsection
(e), as redesignated, and inserting ``Intermediaries.--'';
(8) striking ``intermediary'' the first place it appears in
subsection (e)(1), as redesignated and as amended by paragraph
[[Page 112 STAT. 1914]]
(5)(A), and inserting ``intermediary, as defined in section
3(17)(A) of this Act,'';
(9) striking ``license'' in paragraph (1) of subsection (e),
as redesignated, and inserting ``license, if required by
subsection (a),'';
(10) striking paragraph (3) of subsection (e), as
redesignated, and redesignating paragraph (4) as paragraph (3);
and
(11) adding at the end of subsection (e), as redesignated,
the following:
``(4) No conference or group of 2 or more ocean common
carriers in the foreign commerce of the United States that is
authorized to agree upon the level of compensation paid to an
ocean transportation intermediary, as defined in section
3(17)(A) of this Act, may--
``(A) deny to any member of the conference or group
the right, upon notice of not more than 5 calendar days,
to take independent action on any level of compensation
paid to an ocean transportation intermediary, as so
defined; or
``(B) agree to limit the payment of compensation to
an ocean transportation intermediary, as so defined, to
less than 1.25 percent of the aggregate of all rates and
charges which are applicable under a tariff and which
are assessed against the cargo on which the intermediary
services are provided.''.
SEC. 117. CONTRACTS, AGREEMENTS, AND LICENSES UNDER PRIOR SHIPPING
LEGISLATION.
Section 20 of the Shipping Act of 1984 (46 U.S.C. App. 1719) is
amended by--
(1) striking subsection (d) and inserting the following:
``(d) Effects on Certain Agreements and Contracts.--All agreements,
contracts, modifications, licenses, and exemptions previously issued,
approved, or effective under the Shipping Act, 1916, or the Shipping Act
of 1984, shall continue in force and effect as if issued or effective
under this Act, as amended by the Ocean Shipping Reform Act of 1998, and
all new agreements, contracts, and modifications to existing, pending,
or new contracts or agreements shall be considered under this Act, as
amended by the Ocean Shipping Reform Act of 1998.'';
(2) inserting the following at the end of subsection (e):
``(3) The Ocean Shipping Reform Act of 1998 shall not affect
any suit--
``(A) filed before the effective date of that Act;
or
``(B) with respect to claims arising out of conduct
engaged in before the effective date of that Act filed
within 1 year after the effective date of that Act.
``(4) <<NOTE: Regulations.>> Regulations issued by the
Federal Maritime Commission shall remain in force and effect
where not inconsistent with this Act, as amended by the Ocean
Shipping Reform Act of 1998.''.
SEC. 118. SURETY FOR NON-VESSEL-OPERATING COMMON CARRIERS.
Section 23 of the Shipping Act of 1984 (46 U.S.C. App. 1721) is
repealed.
[[Page 112 STAT. 1915]]
TITLE II--AUTHORIZATION OF APPROPRIATIONS FOR THE FEDERAL MARITIME
COMMISSION
SEC. 201. AUTHORIZATION OF APPROPRIATIONS FOR FISCAL YEAR 1998.
There are authorized to be appropriated to the Federal Maritime
Commission, $15,000,000 for fiscal year 1998.
SEC. 202. FEDERAL MARITIME COMMISSION ORGANIZATION.
Section 102(d) of Reorganization Plan No. 7 of 1961 (75 Stat.
840) <<NOTE: 5 USC app; 46 USC app. 1111 note.>> is amended to read as
follows:
``(d) A vacancy or vacancies in the membership of Commission shall
not impair the power of the Commission to execute its functions. The
affirmative vote of a majority of the members serving on the Commission
is required to dispose of any matter before the Commission.''.
SEC. 203. REGULATIONS. <<NOTE: Deadline. 46 USC app. 1716 note.>>
Not later than March 1, 1999, the Federal Maritime Commission shall
prescribe final regulations to implement the changes made by this Act.
TITLE III--AMENDMENTS TO OTHER SHIPPING AND MARITIME LAWS
SEC. 301. AMENDMENTS TO SECTION 19 OF THE MERCHANT MARINE ACT,
1920.
(a) In General.--Section 19 of the Merchant Marine Act, 1920 (46
U.S.C. App. 876) is amended by--
(1) striking ``forwarding and'' in subsection (1)(b);
(2) striking ``non-vessel-operating common carrier
operations,'' in subsection (1)(b) and inserting ``ocean
transportation intermediary services and operations,'';
(3) striking ``methods or practices'' and inserting
``methods, pricing practices, or other practices'' in subsection
(1)(b);
(4) striking ``tariffs of a common carrier'' in subsection
7(d) and inserting ``tariffs and service contracts of a common
carrier'';
(5) striking ``use the tariffs of conferences'' in
subsections (7)(d) and (9)(b) and inserting ``use tariffs of
conferences and service contracts of agreements'';
(6) striking ``tariffs filed with the Commission'' in
subsection (9)(b) and inserting ``tariffs and service
contracts'';
(7) striking ``freight forwarder,'' each place it appears
and inserting ``transportation intermediary,''; and
(8) striking ``tariff'' each place it appears in subsection
(11) and inserting ``tariff or service contract''.
(b) Stylistic Conformity.--Section 19 of the Merchant Marine Act,
1920 (46 U.S.C. App. 876), as amended by subsection (a), is further
amended by--
(1) redesignating subdivisions (1) through (12) as
subsections (a) through (l), respectively;
[[Page 112 STAT. 1916]]
(2) redesignating subdivisions (a), (b), and (c) of
subsection (a), as redesignated, as paragraphs (1), (2), and
(3);
(3) redesignating subdivisions (a) through (d) of subsection
(f), as redesignated, as paragraphs (1) through (4),
respectively;
(4) redesignating subdivisions (a) through (e) of subsection
(g), as redesignated, as paragraphs (1) through (5),
respectively;
(5) redesignating clauses (i) and (ii) of subsection (g)(4),
as redesignated, as subparagraphs (A) and (B), respectively;
(6) redesignating subdivisions (a) through (e) of subsection
(i), as redesignated, as paragraphs (1) through (5),
respectively;
(7) redesignating subdivisions (a) and (b) of subsection
(j), as redesignated, as paragraphs (1) and (2), respectively;
(8) striking ``subdivision (c) of paragraph (1)'' in
subsection (c), as redesignated, and inserting ``subsection
(a)(3)'';
(9) striking ``paragraph (2)'' in subsection (c), as
redesignated, and inserting ``subsection (b)'';
(10) striking ``paragraph (1)(b)'' each place it appears and
inserting ``subsection (a)(2)'';
(11) striking ``subdivision (b),'' in subsection (g)(4), as
redesignated, and inserting ``paragraph (2),'';
(12) striking ``paragraph (9)(d)'' in subsection (j)(1), as
redesignated, and inserting ``subsection (i)(4)''; and
(13) striking ``paragraph (7)(d) or (9)(b)'' in subsection
(k), as redesignated, and inserting ``subsection (g)(4) or
(i)(2)''.
SEC. 302. TECHNICAL CORRECTIONS.
(a) Public Law 89-777.--Sections 2 and 3 of the Act of November 6,
1966 (46 U.S.C. App. 817d and 817e) are amended by striking ``they in
their discretion'' each place it appears and inserting ``it in its
discretion''.
(b) Tariff Act of 1930.--Section 641(i) of the Tariff Act of 1930
(19 U.S.C. 1641) is repealed.
TITLE IV--CERTAIN LOAN GUARANTEES AND COMMITMENTS
SEC. 401. CERTAIN LOAN GUARANTEES AND COMMITMENTS. <<NOTE: 46 USC app.
1273a.>>
(a) The Secretary of Transportation may not issue a guarantee or
commitment to guarantee a loan for the construction, reconstruction, or
reconditioning of a liner vessel under the authority of title XI of the
Merchant Marine Act, 1936 (46 U.S.C. App. 1271 et seq.) after the date
of enactment of this Act unless the Chairman of the Federal Maritime
Commission certifies that the operator of such vessel--
(1) has not been found by the Commission to have violated
section 19 of the Merchant Marine Act, 1920 (46 U.S.C. App.
876), or the Foreign Shipping Practices Act of 1988 (46 U.S.C.
App. 1701a), within the previous 5 years; and
(2) has not been found by the Commission to have committed a
violation of the Shipping Act of 1984 (46 U.S.C. App. 1701 et
seq.), which involves unjust or unfair discriminatory treatment
or undue or unreasonable prejudice or disadvantage with respect
to a United States shipper, ocean transportation intermediary,
ocean common carrier, or port within the previous 5 years.
[[Page 112 STAT. 1917]]
(b) The Secretary of Commerce may not issue a guarantee or a
commitment to guarantee a loan for the construction, reconstruction, or
reconditioning of a fishing vessel under the authority of title XI of
the Merchant Marine Act, 1936 (46 U.S.C. App. 1271 et seq.) if the
fishing vessel operator has been--
(1) held liable or liable in rem for a civil penalty
pursuant to section 308 of the Magnuson-Stevens Fishery
Conservation and Management Act (16 U.S.C. 1858) and not paid
the penalty;
(2) found guilty of an offense pursuant to section 309 of
the Magnuson-Stevens Fishery Conservation and Management Act (16
U.S.C. 1859) and not paid the assessed fine or served the
assessed sentence;
(3) held liable for a civil or criminal penalty pursuant to
section 105 of the Marine Mammal Protection Act of 1972 (16
U.S.C. 1375) and not paid the assessed fine or served the
assessed sentence; or
(4) held liable for a civil penalty by the Coast Guard
pursuant to title 33 or 46, United States Code, and not paid the
assessed fine.
Approved October 14, 1998.
LEGISLATIVE HISTORY--S. 414:
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SENATE REPORTS: No. 105-61 (Comm. on Commerce, Science, and
Transportation).
CONGRESSIONAL RECORD, Vol. 144 (1998):
Apr. 3, 21, considered and passed Senate.
Aug. 4, considered and passed House, amended.
Oct. 1, Senate concurred in House amendment.
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