SEC. 701. Short Title.
This title may be cited as the “Federal Maritime Commission Authorization Act of 2017”.
Title VII — Federal Maritime Commission
TITLE VII Federal Maritime Commission
SEC. 702. Authorization of Appropriations.
Section 308 of title 46, United States Code, is amended by striking “ $24,700,000 for each of fiscal years 2016 and 2017” and inserting “ $28,012,310 for fiscal year 2018 and $28,544,543 for fiscal year 2019”.
SEC. 703. Reporting on Impact of Alliances on Competition.
Section 306 of title 46, United States Code, is amended—
in subsection (b)—
in paragraph (4), by striking “ ; and” and inserting a semicolon;
in paragraph (5), by striking the period at the end and inserting “ ; and”; and
by adding at the end the following:
“(6) an analysis of the impacts on competition for the purchase of certain covered services by alliances of ocean common carriers acting pursuant to an agreement under this part between or among ocean common carriers, including a summary of actions, including corrective actions, taken by the Commission to promote such competition.”
; and
by adding at the end the following:
“(c) Definition of Certain Covered Services.—In this section, the term ‘certain covered services’ has the meaning given the term in section 40102.”
SEC. 704. Definition of Certain Covered Services.
Section 40102 of title 46, United States Code, is amended—
by redesignating paragraphs (5) through (25) as paragraphs (6) through (26), respectively; and
by inserting after paragraph (4), the following:
“(5) Certain covered services.—For purposes of sections 41105 and 41307, the term ‘certain covered services’ means, with respect to a vessel—
“(A) the berthing or bunkering of the vessel;
“(B) the loading or unloading of cargo to or from the vessel to or from a point on a wharf or terminal;
“(C) the positioning, removal, or replacement of buoys related to the movement of the vessel; and
“(D) with respect to injunctive relief under section 41307, towing vessel services provided to such a vessel.”
SEC. 705. Reports Filed with the Commission.
Section 40104(a) of title 46, United States Code, is amended to read as follows:
“(a) Reports.—
“(1) In general.—The Federal Maritime Commission may require a common carrier or marine terminal operator, or an officer, receiver, trustee, lessee, agent, or employee of the common carrier or marine terminal operator to file with the Commission a periodical or special report, an account, record, rate, or charge, or a memorandum of facts and transactions related to the business of the common carrier or marine terminal operator, as applicable.
“(2) Requirements.—Any report, account, record, rate, charge, or memorandum required to be filed under paragraph (1) shall—
“(A) be made under oath if the Commission requires; and
“(B) be filed in the form and within the time prescribed by the Commission.
“(3) Limitation.—The Commission shall—
“(A) limit the scope of any filing ordered under this section to fulfill the objective of the order; and
“(B) provide a reasonable period of time for respondents to respond based upon their capabilities and the scope of the order.”
SEC. 706. Public Participation.
Notice of Filing.— Section 40304(a) of title 46, United States Code, is amended to read as follows:
“(a) Notice of Filing.—Not later than 7 days after the date an agreement is filed, the Federal Maritime Commission shall—
“(1) transmit a notice of the filing to the Federal Register for publication; and
“(2) request interested persons to submit relevant information and documents.”
Request for Information and Documents.— Section 40304(d) of title 46, United States Code, is amended by striking “ section” and inserting “ part”.
Saving Clause.— Nothing in this section, or the amendments made by this section, may be construed—
to prevent the Federal Maritime Commission from requesting from a person, at any time, any additional information or documents the Commission considers necessary to carry out chapter 403 of title 46, United States Code;
to prescribe a specific deadline for the submission of relevant information and documents in response to a request under section 40304(a)(2) of title 46, United States Code; or
to limit the authority of the Commission to request information under section 40304(d) of title 46, United States Code.
SEC. 707. Ocean Transportation Intermediaries.
License Requirement.— Section 40901(a) of title 46, United States Code, is amended by inserting “ advertise, hold oneself out, or” after “ may not”.
Applicability.— Section 40901 of title 46, United States Code, is amended by adding at the end the following:
“(c) Applicability.—Subsection (a) and section 40902 do not apply to a person that performs ocean transportation intermediary services on behalf of an ocean transportation intermediary for which it is a disclosed agent.”
Financial Responsibility.— Section 40902(a) of title 46, United States Code, is amended by inserting “ advertise, hold oneself out, or” after “ may not”.
SEC. 708. Common Carriers.
Section 41104 of title 46, United States Code, is amended—
in the matter preceding paragraph (1), by inserting “ (a) In General.—” before “ A common carrier”;
in subsection (a), as designated—
by amending paragraph (11) to read as follows:
“(11) knowingly and willfully accept cargo from or transport cargo for the account of a non-vessel-operating common carrier that does not have a tariff as required by section 40501 of this title, or an ocean transportation intermediary that does not have a bond, insurance, or other surety as required by section 40902 of this title;”
in paragraph (12), by striking the period at the end and inserting “ ; or”; and
by adding at the end the following:
“(13) continue to participate simultaneously in a rate discussion agreement and an agreement to share vessels, in the same trade, if the interplay of the authorities exercised by the specified agreements is likely, by a reduction in competition, to produce an unreasonable reduction in transportation service or an unreasonable increase in transportation cost.”
; and
by adding at the end the following:
“(b) Rule of Construction.—Notwithstanding any other provision of law, there is no private right of action to enforce the prohibition under subsection (a)(13).
“(c) Agreement Violation.—Participants in an agreement found by the Commission to violate subsection (a)(13) shall have 90 days from the date of such Commission finding to withdraw from the agreement as necessary to comply with that subsection.”
Application.— Section 41104(a)(13) of title 46, United States Code, as amended, shall apply to any agreement filed or with an effective date before, on, or after the date of enactment of this Act.
SEC. 709. Negotiations.
by redesignating paragraphs (5) through (8) as paragraphs (7) through (10), respectively; and
by inserting after paragraph (4) the following:
“(5) negotiate with a tug or towing vessel service provider on any matter relating to rates or services provided within the United States by those tugs or towing vessels;
“(6) with respect to a vessel operated by an ocean common carrier within the United States, negotiate for the purchase of certain covered services, unless the negotiations and any resulting agreements are not in violation of the antitrust laws and are consistent with the purposes of this part, except that this paragraph does not prohibit the setting and publishing of a joint through rate by a conference, joint venture, or association of ocean common carriers;”
Authority.— Chapter 411 of title 46, United States Code, is amended—
by inserting after section 41105 the following:
Ҥ 41105A. Authority
“Nothing in section 41105, as amended by the Federal Maritime Commission Authorization Act of 2017, shall be construed to limit the authority of the Department of Justice regarding antitrust matters.”
; and
in the analysis at the beginning of chapter 411, by inserting after the item relating to section 41105 the following:
“41105A. Authority.”.
Exemption.— Section 40307(b)(1) of title 46, United States Code, is amended by inserting “ tug operators,” after “ motor carriers,”.
SEC. 710. Injunctive Relief Sought by the Commission.
in paragraph (1) by inserting “ or to substantially lessen competition in the purchasing of certain covered services” after “ transportation cost”; and
by adding at the end the following:
“(4) Competition factors.—In making a determination under this subsection regarding whether an agreement is likely to substantially lessen competition in the purchasing of certain covered services, the Commission may consider any relevant competition factors in affected markets, including, without limitation, the competitive effect of agreements other than the agreement under review.”
Application.— Section 41307(b) of title 46, United States Code, as amended, shall apply to any agreement filed or with an effective date before, on, or after the date of enactment of this Act.
SEC. 711. Discussions.
In General.— Section 303 of title 46, United States Code, is amended to read as follows:
Ҥ 303. Meetings
“(a) In General.—The Federal Maritime Commission shall be deemed to be an agency for purposes of section 552b of title 5.
“(b) Record.—The Commission, through its secretary, shall keep a record of its meetings and the votes taken on any action, order, contract, or financial transaction of the Commission.
“(c) Nonpublic Collaborative Discussions.—
“(1) In general.—Notwithstanding section 552b of title 5, a majority of the Commissioners may hold a meeting that is not open to public observation to discuss official agency business if—
“(A) no formal or informal vote or other official agency action is taken at the meeting;
“(B) each individual present at the meeting is a Commissioner or an employee of the Commission;
“(C) at least 1 Commissioner from each political party is present at the meeting, if applicable; and
“(D) the General Counsel of the Commission is present at the meeting.
“(2) Disclosure of nonpublic collaborative discussions.—Except as provided under paragraph (3), not later than 2 business days after the conclusion of a meeting under paragraph (1), the Commission shall make available to the public, in a place easily accessible to the public—
“(A) a list of the individuals present at the meeting; and
“(B) a summary of the matters discussed at the meeting, except for any matters the Commission properly determines may be withheld from the public under section 552b(c) of title 5.
“(3) Exception.—If the Commission properly determines matters may be withheld from the public under section 555b(c) of title 5, the Commission shall provide a summary with as much general information as possible on those matters withheld from the public.
“(4) Ongoing proceedings.—If a meeting under paragraph (1) directly relates to an ongoing proceeding before the Commission, the Commission shall make the disclosure under paragraph (2) on the date of the final Commission decision.
“(5) Preservation of open meetings requirements for agency action.—Nothing in this subsection may be construed to limit the applicability of section 552b of title 5 with respect to a meeting of the Commissioners other than that described in this subsection.
“(6) Statutory construction.—Nothing in this subsection may be construed—
“(A) to limit the applicability of section 552b of title 5 with respect to any information which is proposed to be withheld from the public under paragraph (2)(B) of this subsection; or
“(B) to authorize the Commission to withhold from any individual any record that is accessible to that individual under section 552a of title 5.”
Table of Contents.— The analysis at the beginning of chapter 3 of title 46, United States Code, is amended by amending the item relating to section 303 to read as follows:
“303. Meetings.”.
SEC. 712. Transparency.
In General.— Beginning not later than 60 days after the date of enactment of this Act, the Federal Maritime Commission shall submit to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives biannual reports that describe the Commission’s progress toward addressing the issues raised in each unfinished regulatory proceeding, regardless of whether the proceeding is subject to a statutory or regulatory deadline.
Format of Reports.— Each report under subsection (a) shall, among other things, clearly identify for each unfinished regulatory proceeding—
the popular title;
the current stage of the proceeding;
an abstract of the proceeding;
what prompted the action in question;
any applicable statutory, regulatory, or judicial deadline;
the associated docket number;
the date the rulemaking was initiated;
a date for the next action; and
if a date for next action identified in the previous report is not met, the reason for the delay.
SEC. 713. Study of Bankruptcy Preparation and Response.
Study.— The Comptroller General of the United States shall conduct a study that examines the immediate aftermath of a major ocean carrier bankruptcy and its impact through the supply chain. The study shall consider any financial mechanisms that could be used to mitigate the impact of any future bankruptcy events on the supply chain.
Report.— No later than 1 year after the date of enactment of this Act, the Comptroller General of the United States shall submit to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a report containing the findings, conclusions, and recommendations, if any, from the study required under subsection (a).
SEC. 714. Agreements Unaffected.
Nothing in this Act may be construed—
to limit or amend the definition of “agreement” in section 40102(1) of title 46, United States Code, with respect to the exclusion of maritime labor agreements; or
to apply to a maritime labor agreement (as defined in section 40102(15) of that title).