Decoding OSRA: Section 15. Technical Amendments
Introduction
It’s been a while since our last entry in this series, where we go through the Ocean Shipping Reform Act (OSRA) section by section, but we haven’t forgotten. We’re still only beginning to see how the changes to U.S. shipping law will affect businesses’ imports and exports as well as carriers’ and other industry stakeholders’ operations within maritime shipping. At Universal Cargo, we want to help shippers know how law changes will affect them. So what exactly does OSRA say and do? That’s what we find out in this series. And we’re over half way through examining exactly what our lawmakers changed in the U.S. Code dealing with shipping.
You probably know how it works by now, but in case you’ve stumbled upon this series in the middle, we give you the OSRA text; the text of the U.S. Code, usually in Title 46, before and after its amendments; and consider what those changes mean for U.S. importers and exporters.
Previously covered in this series:
- Series Introduction & Quick Coverage of Section 1
- Section 2
- Section 3
- Section 4
- Section 5
- Section 6
- Section 7
- Section 8
- Section 9
- Section 10
- Section 11
- Section 12
- Section 13
- Section 14
That means today we’re covering Section 15 of OSRA. Let’s see exactly what it says and changes…
Quick Overview
This section of OSRA makes four changes to Title 46 of the U.S. Code. However, those changes are more clerical than anything else. As lawmakers went about amending the code – changing, deleting, and adding sections, paragraphs, and subparagraphs – it sometimes requires references within the code to other parts of it to be amended. That’s all this section does. It corrects references in accordance with changes the lawmakers made to the code.
Section 15 Text
SEC. 15. TECHNICAL AMENDMENTS.
(a) Section 41108(a) of title 46, United States Code, is amended by
striking ``section 41104(1), (2), or (7)'' and inserting ``paragraph
(1), (2), or (7) of section 41104(a)''.
(b) Section 41109(c) of title 46, United States Code, as amended by
section 8 of this Act, is further amended by striking ``section 41102(a)
or 41104(1) or (2) of this title'' and inserting ``subsection (a) or (d)
of section 41102 or paragraph (1) or (2) of section 41104(a)''.
(c) Section 41305 of title 46, United States Code, as amended by
section 12 of this Act, is further amended--
(1) in subsection (c), by striking ``41104(3) or (6), or
41105(1) or (3) of this title'' and inserting ``paragraph (3) or
(6) of section 41104(a), or paragraph (1) or (3) of section
41105''; and
(2) in subsection (d), by striking ``section 41104(4)(A) or
(B) of this title'' and inserting ``subparagraph (A) or (B) of
section 41104(a)(4)''.
Original Title 46 Text
§41108. Additional penalties (a) Suspension of Tariffs.—For a violation of section 41104(1), (2), or (7) 1 of this title, the Federal Maritime 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. (b) Operating Under Suspended Tariff.—A common carrier that accepts or handles cargo for carriage under a tariff that has been suspended, or after its right to use that tariff has been suspended, is liable to the United States Government for a civil penalty of not more than $50,000 for each shipment. (c) Failure To Provide Information.— (1) Penalties.—If the Commission finds, after notice and opportunity for a hearing, that a common carrier has failed to supply information ordered to be produced or compelled by subpoena under section 41303 of this title, the Commission may— (A) suspend any or all tariffs of the carrier or the carrier's right to use any or all tariffs of conferences of which it is a member; and (B) request the Secretary of Homeland Security to refuse or revoke any clearance required for a vessel operated by the carrier, and when so requested, the Secretary shall refuse or revoke the clearance. (2) Defense based on foreign law.—If, in defense of its failure to comply with a subpoena or discovery order, a common carrier alleges that information or documents 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. On receiving the notification, the Secretary of State shall promptly consult with the government of the nation within which the information or documents are alleged to be located for the purpose of assisting the Commission in obtaining the information or documents. (d) Impairing Access to Foreign Trade.—If the Commission finds, after notice and opportunity for a hearing, that the action of a common carrier, acting alone or in concert with another 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 imposing any of the penalties authorized by this section. The Commission also may take any of the actions authorized by sections 42304 and 42305 of this title. (e) Submission of Order to President.—Before an order under this section becomes effective, it shall be submitted immediately to the President. The President, within 10 days after receiving it, may disapprove it if the President finds that disapproval is required for reasons of national defense or foreign policy. §41109. Assessment of penalties (a) General Authority.—Until a matter is referred to the Attorney General, the Federal Maritime Commission may, after notice and opportunity for a hearing, assess a civil penalty provided for in this part. The Commission may compromise, modify, or remit, with or without conditions, a civil penalty. (b) Factors in Determining Amount.—In determining the amount of a civil 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 other matters justice may require. (c) Exception.—A civil penalty may not be imposed for conspiracy to violate section 41102(a) or 41104(1) or (2) 1 of this title or to defraud the Commission by concealing such a violation. (d) Prohibited Basis of Penalty.—The Commission or a court may not order a 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 a tariff or service contract by that common carrier for the transportation service provided. (e) Time Limit.—A proceeding to assess a civil penalty under this section must be commenced within 5 years after the date of the violation. (f) Review of Civil Penalty.—A person against whom a civil penalty is assessed under this section may obtain review under chapter 158 of title 28. (g) Civil Actions To Collect.—If a person does not pay an assessment of a civil penalty after it has become final or after the appropriate court has entered final judgment in favor of the Commission, the Attorney General at the request of the Commission may seek to collect the amount assessed in an appropriate district court of the United States. The court shall enforce the order of the Commission unless it finds that the order was not regularly made and duly issued. §41305. Award of reparations (a) Definition.—In this section, the term "actual injury" includes the loss of interest at commercial rates compounded from the date of injury. (b) Basic Amount.—If the complaint was filed within the period specified in section 41301(a) of this title, the Federal Maritime Commission shall direct the payment of reparations to the complainant for actual injury caused by a violation of this part. (c) Additional Amounts.—On a showing that the injury was caused by an activity prohibited by section 41102(b), 41104(3) or (6), or 41105(1) or (3) of this title, the Commission may order the payment of additional amounts, but the total recovery of a complainant may not exceed twice the amount of the actual injury. (d) Difference Between Rates.—If the injury was caused by an activity prohibited by section 41104(4)(A) or (B) of this title, 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. (e) Attorney Fees.—In any action brought under section 41301, the prevailing party may be awarded reasonable attorney fees.
Amended Text
§41108. Additional penalties (a) Suspension of Tariffs.—For a violation of paragraph (1), (2), or (7) of section 41104(a) 1 of this title, the Federal Maritime 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. (b) Operating Under Suspended Tariff.—A common carrier that accepts or handles cargo for carriage under a tariff that has been suspended, or after its right to use that tariff has been suspended, is liable to the United States Government for a civil penalty of not more than $50,000 for each shipment. (c) Failure To Provide Information.— (1) Penalties.—If the Commission finds, after notice and opportunity for a hearing, that a common carrier has failed to supply information ordered to be produced or compelled by subpoena under section 41303 of this title, the Commission may— (A) suspend any or all tariffs of the carrier or the carrier's right to use any or all tariffs of conferences of which it is a member; and (B) request the Secretary of Homeland Security to refuse or revoke any clearance required for a vessel operated by the carrier, and when so requested, the Secretary shall refuse or revoke the clearance. (2) Defense based on foreign law.—If, in defense of its failure to comply with a subpoena or discovery order, a common carrier alleges that information or documents 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. On receiving the notification, the Secretary of State shall promptly consult with the government of the nation within which the information or documents are alleged to be located for the purpose of assisting the Commission in obtaining the information or documents. (d) Impairing Access to Foreign Trade.—If the Commission finds, after notice and opportunity for a hearing, that the action of a common carrier, acting alone or in concert with another 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 imposing any of the penalties authorized by this section. The Commission also may take any of the actions authorized by sections 42304 and 42305 of this title. (e) Submission of Order to President.—Before an order under this section becomes effective, it shall be submitted immediately to the President. The President, within 10 days after receiving it, may disapprove it if the President finds that disapproval is required for reasons of national defense or foreign policy. §41109. Assessment of penalties (a) General Authority.—Until a matter is referred to the Attorney General, the Federal Maritime Commission may, after notice and opportunity for a hearing, assess a civil penalty provided for in this part. The Commission may compromise, modify, or remit, with or without conditions, a civil penalty. (b) Factors in Determining Amount.—In determining the amount of a civil 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 other matters justice may require. (c) Exception.—A civil penalty may not be imposed for conspiracy to violate subsection (a) or (d) of section 41102 or paragraph (1) or (2) of section 41104(a) 1 of this title or to defraud the Commission by concealing such a violation. (d) Prohibited Basis of Penalty.—The Commission or a court may not order a 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 a tariff or service contract by that common carrier for the transportation service provided. (e) Time Limit.—A proceeding to assess a civil penalty under this section must be commenced within 5 years after the date of the violation. (f) Review of Civil Penalty.—A person against whom a civil penalty is assessed under this section may obtain review under chapter 158 of title 28. (g) Civil Actions To Collect.—If a person does not pay an assessment of a civil penalty after it has become final or after the appropriate court has entered final judgment in favor of the Commission, the Attorney General at the request of the Commission may seek to collect the amount assessed in an appropriate district court of the United States. The court shall enforce the order of the Commission unless it finds that the order was not regularly made and duly issued. §41305. Award of reparations (a) Definition.—In this section, the term "actual injury" includes the loss of interest at commercial rates compounded from the date of injury. (b) Basic Amount.—If the complaint was filed within the period specified in section 41301(a) of this title, the Federal Maritime Commission shall direct the payment of reparations to the complainant for actual injury caused by a violation of this part. (c) Additional Amounts.—On a showing that the injury was caused by an activity prohibited by paragraph (3) or (6) of section 41104(a), or paragraph (1) or (3) of section 41105, the Commission may order the payment of additional amounts, but the total recovery of a complainant may not exceed twice the amount of the actual injury. (d) Difference Between Rates.—If the injury was caused by an activity prohibited by subparagraph (A) or (B) of section 41104(a)(4), 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. (e) Attorney Fees.—In any action brought under section 41301, the prevailing party may be awarded reasonable attorney fees.
Commentary on Section 15?
There’s not much to say about Section 15, as even its title informs that the changes it makes are only technical. If it weren’t for the commitment to go through OSRA section by section, I probably would have skipped past 15. It is, of course, important that when referencing activities expressly defined by the Title 46, as the parts amended by Section 15 of OSRA do, that they reference the correct sections. Thus, Section 15 of OSRA importantly does cleanup duty.
I did include the full sections of Title 46 to which this section of OSRA makes clerical corrections. All three sections deal with penalties and reparations for breaking shipping law.
Conclusion
Perhaps you, the reader, have more to say on Section 15 than I do. If so, please do share in the comments. Otherwise, just know that this is a necessary section, cleaning up references rather than actually making any substantial changes to the law.
Stay tuned for when Decoding OSRA continues, looking at Section 16….
