    [Senate Hearing 118-694]
    [From the U.S. Government Publishing Office]

                                                           S. Hrg. 118-694

                              NOMINATIONS TO THE
                          FEDERAL MARITIME COMMISSION

    =======================================================================

                                    HEARING

                                   BEFORE THE

                             COMMITTEE ON COMMERCE,
                          SCIENCE, AND TRANSPORTATION
                              UNITED STATES SENATE

                        ONE HUNDRED EIGHTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                               FEBRUARY 28, 2024

                                   __________

        Printed for the use of the Committee on Commerce, Science, and
                                 Transportation

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

                    Available online: http://www.govinfo.gov

                                    __________

                       U.S. GOVERNMENT PUBLISHING OFFICE
    61-203 PDF                  WASHINGTON : 2025

    -----------------------------------------------------------------------------------

           SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                        ONE HUNDRED EIGHTEENTH CONGRESS

                                 SECOND SESSION

                       MARIA CANTWELL, Washington, Chair
    AMY KLOBUCHAR, Minnesota             TED CRUZ, Texas, Ranking
    BRIAN SCHATZ, Hawaii                 JOHN THUNE, South Dakota
    EDWARD MARKEY, Massachusetts         ROGER WICKER, Mississippi
    GARY PETERS, Michigan                DEB FISCHER, Nebraska
    TAMMY BALDWIN, Wisconsin             JERRY MORAN, Kansas
    TAMMY DUCKWORTH, Illinois            DAN SULLIVAN, Alaska
    JON TESTER, Montana                  MARSHA BLACKBURN, Tennessee
    KYRSTEN SINEMA, Arizona              TODD YOUNG, Indiana
    JACKY ROSEN, Nevada                  TED BUDD, North Carolina
    BEN RAY LUJAN, New Mexico            ERIC SCHMITT, Missouri
    JOHN HICKENLOOPER, Colorado          J. D. VANCE, Ohio
    RAPHAEL WARNOCK, Georgia             SHELLEY MOORE CAPITO, West
    PETER WELCH, Vermont                     Virginia
                                         CYNTHIA LUMMIS, Wyoming
                       Lila Harper Helms, Staff Director
                     Melissa Porter, Deputy Staff Director
                         Jonathan Hale, General Counsel
                     Brad Grantz, Republican Staff Director
               Nicole Christus, Republican Deputy Staff Director
                         Liam McKenna, General Counsel

                               C O N T E N T S

                                  ----------
                                                                       Page
    Hearing held on February 28, 2024................................     1
    Statement of Senator Peters......................................     1
    Statement of Senator Cruz........................................     2
    Statement of Senator Cantwell....................................    83

                                   Witnesses

    Hon. Daniel B. Maffei, Nominee to be Chairman, Federal Maritime
      Commission.....................................................     3
        Prepared statement...........................................     5
        Biographical information.....................................     6
    Hon. Rebecca F. Dye, Nominee to be a Commissioner, Federal
      Maritime Commission............................................    28
        Prepared statement...........................................    29
        Biographical information.....................................    30

                                    Appendix

    Response to written questions submitted to Hon. Daniel B. Maffei
      by:
        Hon. Amy Klobuchar...........................................    89
        Hon. Raphael Warnock.........................................    90
        Hon. Deb Fischer.............................................    92
        Hon. Ted Budd................................................    93
    Response to written questions submitted to Hon. Rebecca F. Dye
      by:
        Hon. Amy Klobuchar...........................................    94
        Hon. Raphael Warnock.........................................    95
        Hon. Deb Fischer.............................................    96
        Hon. Ted Budd................................................    97

                              NOMINATIONS TO THE
                          FEDERAL MARITIME COMMISSION

                                  ----------

                          WEDNESDAY, FEBRUARY 28, 2024

                                            U.S. Senate
            Committee on Commerce, Science, and Transportation,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 10 a.m., in room
    SR-253, Russel Senate Office Building, Hon. Gary Peters,
    Chairman of the Committee, presiding.
        Present: Senators Peters [presiding], Cantwell, Baldwin,
    Tester, Sinema, Rosen, Warnock, Cruz, Fischer, and Schmitt.

                OPENING STATEMENT OF HON. GARY PETERS,
                       U.S. SENATOR FROM MICHIGAN

        Chair Peters. The Committee will come to order. I want to,
    first off, welcome each of our nominees, and to your friends
    and families who are joining you here today. Certainly, thank
    you for your prior public service and your willingness to serve
    in these important positions.
        The Federal Maritime Commission plays an essential role in
    American shipping and the global economy. It regulates shipping
    lines to keep them fair and competitive, and protects our
    country's interests in this industry. This agency does not just
    help international trade go more smoothly; it also keeps the
    American economy humming.
        It is more important than ever that we confirm qualified
    people to the FMC. And in this instance retain the leadership
    and expertise provided by Chairman Daniel Maffei, and
    Commissioner Rebecca Dye.
        The Ocean Shipping Reform Act was signed into law last
    summer, and provided the FMC with a number of new authorities.
    If these nominees are confirmed, they will be equipped with new
    tools to address supply chain challenges and investigate unfair
    practices.
        For instance, the Ocean Shipping Reform Act established new
    practices for detention and demurrage. This is one of the key
    duties of this Commission, ensuring that American shippers are
    not being charged unfair fees, and in turn, lowering costs for
    consumers across Michigan as well our entire country.
        Authorities like these will help FMC Commissioners do their
    jobs, and meet the demand of record caseload. I look forward to
    hearing how our nominees plan to continue implementing these
    new policies, and the other oversight responsibilities of the
    FMC.
        As a Michigander, I am also interested in what our nominees
    have to say about the Great Lakes. Our ports and shippers are a
    pillar of the American shipping industry. Our state is a
    unique--has a unique regulatory environment for the FMC, and I
    hope to learn more about how they plan to keep our state's
    shipping lines running effectively.
        And finally, the duties of this Commission intersect with
    safety, and international security, conflicts abroad can lead
    to attacks on commercial American ships, as we have seen
    recently across the Red Sea and the Gulf of Aden. The FMC has
    to monitor issues like this, and respond to their effects on
    the American stakeholders in the shipping industry.
        These are just a few examples of the work these nominees
    will tackle if they are confirmed to this Commission. Today's
    hearing gives us a chance to hear from them directly, as well
    as to dive deeper into their experience, their qualifications,
    and vision for the Federal Maritime Commission.
        Ranking Member Cruz is recognized, as soon as he has a
    chance to get set up here, for any opening remarks.

                      STATEMENT OF HON. TED CRUZ,
                        U.S. SENATOR FROM TEXAS

        Senator Cruz. Thank you, Mr. Chairman. We are here today to
    consider the renominations of two experienced public servants
    to the Federal Maritime Commission, or FMC. I want to thank FMC
    Chairman Daniel Maffei, and Commissioner Rebecca Dye, for their
    willingness to continue their important work.
        During the pandemic, supply chains suffered unprecedented
    shocks; a spike in demand for consumer goods outstripped
    capacity to transport those goods. As an understandable
    reaction to the delays, many businesses ordered excess
    inventory to compensate for the longer transit times,
    compounding a cycle, and worsening congestion.
        Senators Thune and Klobuchar worked on a tailored
    bipartisan solution to ensure the FMC had the tools it needed
    to properly oversee ocean transportation practices, resulting
    in the Ocean Shipping Reform Act of 2022. I look forward to
    hearing about the FMC's actions to implement this legislation.
        Unfortunately, in recent months, just after ocean shipping
    prices and transit times began to normalize, international
    instability threatens to make ocean transportation less
    affordable and efficient. Iranian-backed terrorists are causing
    death and costly destruction across the Middle East. In support
    of Hamas and Gaza, the Houthis have fired dozens of missiles
    and armed drones at U.S. Naval Forces and cargo ships
    transiting the Red Sea. This threat has caused many carriers to
    avoid the Suez Canal in favor of the much longer but safer
    journey around Africa.
        As a result, the spot rate for ocean shipping has increased
    to a level that is roughly 250 percent of the going rates in
    early November.
        It is understandable why carriers might increase rates to
    transit around Africa. In turn, the FMC may use its authority
    to monitor these rate hikes, but we should recognize that
    neither shippers nor the FMC can address the underlying causes
    of this most recent disruption.
        That responsibility lies squarely with President Biden. His
    weakness on the international stage has, unfortunately,
    emboldened our enemies. The inexplicable strategy of appeasing
    Iran has backfired spectacularly. America must project
    strength; we must support Israel, and oppose terrorists. The
    failure to do so has invited violence that threatens
    international commerce in addition to U.S. security.
        As we consider the challenges facing ocean shipping today,
    it is important to recognize how mistakes on the world stage
    have serious economic consequences.
        Again, Chairman Maffei and Commissioner Dye, I look forward
    to the discussion of your past and ongoing efforts to protect
    American businesses and consumers who rely on ocean
    transportation. Thank you.
        Chair Peters. Thank you, Ranking Member Cruz.
        Our first nominee, Dan Maffei, has sat on the FMC since
    2016, and is currently the Chairman of the Commission. This is
    the latest chapter in a long career of public service for Mr.
    Maffei, including as a Member of the U.S. House of
    Representatives, sat for two terms, where I was proud to call
    him one of my colleagues.
        I am honored to preside over his nomination hearing, and
    look forward to learning more about his work with the FMC
    today.
        Chairman Maffei, it is a true pleasure to have you before
    us here today. And you are now recognized for your opening
    remarks.

      STATEMENT OF HON. DANIEL B. MAFFEI, NOMINEE TO BE CHAIRMAN,
                      FEDERAL MARITIME COMMISSION

        Mr. Maffei. Thank you, Chairman Peters; also Ranking Member
    Cruz, and Members of the Committee, I thank you for this
    opportunity to speak before you today. I know it is a very busy
    day, so I appreciate the time.
        I also want to thank the Full Committee Chair Maria
    Cantwell; and both the Democratic and Republican staffs for
    their help and guidance in this process.
        The last time I was here, the ocean-linked supply chains
    that served our Nation were indeed in crisis. Ports were
    congested, some of them with dozens of hulking containerships
    waiting at anchor for days to be unloaded. Stores and
    warehouses were running low on consumer products, and farm
    exports were sometimes rotting while waiting for an available
    container or space on a ship.
        Now, two years later, I can report COVID-related congestion
    ended last year. Cargo is now flowing fluidly, shippers can
    secure their needed equipment, and exports are getting space on
    outgoing ships. But of course, much of the improvement resulted
    from shifts in supply and demand occurring as the world emerged
    from COVID.
        However, clearly, a large factor was also the FMC's work in
    addressing many of the issues that tangled up America's supply
    chains. An example involves detention and demurrage fees
    charged by carriers at marine terminals that are supposed to
    incentivize the efficient movement of cargo. During COVID, the
    system broke down, resulting in supply chain gridlock, even
    while American businesses felt they were being unfairly
    charged.
        Thanks to the work of the Commission, starting with
    Commissioner Dye's 2020 unanimously approved Interpretive Rule,
    the system has markedly improved. And a new billing rule
    required under OSRA, and made public in final form last week,
    will further ensure these fees serve their intended purpose.
        During COVID, and ongoing, to promote compliance, the FMC
    initiated our VOCC Audit Program consisting of regular
    discussions with all the major carriers about their supply
    chain challenges and ocean shipping practices. Many carriers
    have greatly improved in terms of service and responsiveness to
    U.S. importers and exporters due to this program.
        The potential for abuse, however, in any industry is always
    higher if companies believe they will never get caught. At the
    start of the pandemic, it had been years since the Federal
    Maritime Commission brought a major case against an
    international container line, and virtually no civil fines were
    collected by the FMC in Fiscal Year 2020 and Fiscal Year 2021
    despite much discontent with foreign flag carriers.
        With a reorganization of the FMC enforcement personnel and
    priorities, the Commission turned this around. The FMC
    collected nearly $2 million in fines during Fiscal Year 2022,
    and almost $2.9 million in Fiscal Year 2023, most of which from
    containership operators. This does not include the restitution
    to impacted shippers that carriers in these cases provided, nor
    does it include settlements to U.S. shippers who brought
    private cases before the Commission.
        Overall, this continues to be the most intense period in
    our agency's 54-year history. We might have become overwhelmed
    and had far fewer successes, if not for Congress passing, on a
    bipartisan basis, the Ocean Shipping Reform Act. That law,
    authored by Committee Members Klobuchar and Thune, and signed
    by the President in June 2022, strengthened FMC's authority and
    provided resources needed to enhance enforcement and consumer
    services.
        As America's importers and exporters realized the FMC was
    able and willing to help, we got a whole many more cases. In
    fact, in the first 2 months of 2024, we have almost nearly
    twice as many enforcement cases already as we had in the entire
    year of 2020. To handle this growing pace load, we have had to
    go from one administrative law judge to three, and our Consumer
    Affairs Division now handles an average of 100 requests per
    month, many times what they handled pre-COVID.
        Thanks to its dedicated commissioners and personnel and
    additional authority and resources provided by OSRA, FMC has
    evolved into a stronger regulatory agency, and helped restore
    confidence in America's ocean shipping supply system.
        But not all the news is good. The ocean-linked supply
    chains responsible for trillions of dollars of U.S. economic
    activity remain vulnerable, as Senator Cruz pointed out. The
    Houthis' unprovoked attacks on commercial vessels transiting
    the Suez Canal suddenly meant a rerouting of roughly 30 percent
    of global container shipping. This comes at the same time as
    the Panama's Canal unexpected reduction in capacity.
        Add to that a slew of other challenges, including shifting
    carrier alliances, potential trade disputes, and increasing
    threats of piracy and cargo theft, and any major U.S. importer
    or exporter has plenty to worry about. Given this context of
    supply chain uncertainty, it is paramount that the FMC do all
    it can to maintain a competitive and reliable international
    ocean transportation system and protect the public from
    unlawful, unfair, and deceptive practices.
        Working closely with Commissioner Dye, my fellow
    Commissioners, Commissioner Vekich, and Commissioner Bentzel,
    and Commissioner Sola, who is here today, and a small but top-
    notch professional staff, I have helped put the FMC on course
    to accomplish this vital mission.
        I, respectfully, ask that the Committee support both me and
    Commissioner Dye in continuing that work.
        Thank you. And I look forward to your questions.
        [The prepared statement and biographical information of Mr.
    Maffei follow:]

            Prepared Statement of Hon. Daniel B. Maffei, Chairman,
                          Federal Maritime Commission
        Chair Cantwell, Ranking Member Cruz, and Members of the Committee,
    thank you for this opportunity to appear before you today.
        The last time I testified before this committee, the ocean-linked
    supply chains that serve our Nation were in crisis. Ports were so
    congested that many of them had dozens of hulking containerships
    waiting for days to be unloaded. Stores and warehouses were running low
    on consumer products, factories were short of vital components, and our
    agricultural exports were losing value because they were rotting while
    waiting to be loaded in a container or on a ship.
        The FMC took a leading role in addressing many of the problems that
    tangled up America's supply chains. To bolster our efforts, Congress
    passed the Ocean Shipping Reform Act of 2022 to strengthen some of the
    FMC's authority and provide resources needed to enhance enforcement and
    consumer services.
        Now, two years later, I can report that the ship congestion that
    had overwhelmed the supply chain largely subsided last summer. Cargo is
    flowing fluidly, shippers can secure the equipment they need, and
    exports are getting space on outgoing ships.
        The cost of ocean shipping has dramatically declined to pre-
    pandemic levels and this drop occurred far more rapidly than
    forecasted. Much of the reduction in rates and fees is a result of
    market-forces as the world emerged from COVID. Nonetheless, the FMC
    played a vital role in restoring confidence to the public, importers
    and exporters in America's ocean supply chains.
        For example, during COVID, the system of detention and demurrage
    fees--the charges levelled by carriers and marine terminals that are
    supposed to incentivize the efficient movement of cargo--became so
    ubiquitous and disruptive to the supply chain whether or not shippers
    moved their cargo or returned their equipment on time. Thanks to the
    work of the Commission--starting with the detention and demurrage
    interpretive rule efforts by Commissioner Dye--the final OSRA-mandated
    billing rule made public last week will ensure these fees are assessed
    transparently and serve their intended purpose.
        To encourage compliance, in 2021 we initiated regular discussions
    with all the major carriers about supply chain challenges and ocean
    shipping practices through our Vessel-Operating Common Carrier Audit
    Program. We also collect valuable quarterly data from the carriers that
    gives the FMC better visibility into supply chain trends. As a result
    of this program, carriers have greatly improved in terms of service and
    responsiveness to U.S. importers and exporters.
        That said, when necessary, we will hold the ocean carriers
    accountable through enforcement. At the start of the pandemic, it had
    been years since the FMC brought a major case against a container line
    and virtually no civil fines were collected in 2020 and 2021 despite
    much discontent with foreign-flagged carriers. When I became Chairman,
    I worked with Commissioner Dye, as well as Commissioners Bentzel, Sola,
    and Vekich, and senior staff to reorganize FMC enforcement and reset
    its priorities. As a result, the FMC collected nearly two-million-
    dollars in fines during 2022 and almost 2.9-million-dollars in 2023--
    most of which was directly related to cases prosecuted against
    container ship operators. This does not include the restitution to
    impacted shippers that carriers in these cases provided nor does it
    include settlements to U.S. shippers who brought private cases before
    the commission.
        Overall, this continues to be the most intense period of activity
    in our agency's 54-year history. As America's importers and exporters
    realized the FMC was willing and able to help restore fairness, we saw
    a huge influx of cases being filed with the Commission. So far this
    year, we have already received in less than two-months nearly twice as
    many new cases as we received in the entire year of 2020. To
    accommodate our growing caseload, we have increased our Office of
    Administrative Law Judges from one judge to three. Our Office of
    Consumer Affairs and Dispute Resolution Services also handles an
    average of more than 100 requests for help every month.
        The FMC has evolved into a stronger regulatory agency than it was
    before the pandemic. And we will continue this hard work for the public
    and our industry stakeholders that we were created to serve.
        But make no mistake the ocean-linked supply chains responsible for
    trillions of dollars in U.S. economic activity remain vulnerable. The
    Houthi's unprovoked and unanticipated attacks on commercial vessels
    transiting the Suez Canal suddenly meant the re-routing of roughly 30
    percent of global container shipping. This comes at the same time as
    the Panama Canal's unexpected reduction in capacity. Add to that a slew
    of other challenges including shifting carrier alliances, potential
    trade disputes, and a historically high threat of cargo theft inland--
    and any major shipper will tell you they are concerned about
    unpredictable future disruptions.
        Given this context of supply-chain uncertainty, it is paramount
    that the FMC do all it can to maintain a competitive and reliable
    international ocean transportation system and protect the public from
    unlawful, unfair, and deceptive ocean transportation practices. Working
    closely with Commissioner Dye, my other fellow commissioners, and a
    small but top-notch professional staff, I have helped put the FMC on
    course to accomplish this vital mission. I respectfully ask the
    Committee to support both me and Commissioner Dye in continuing that
    work.
        Thank you, and I look forward to answering any of your questions
    today.
                                     ______

                          a. biographical information
        1. Name (Include any former names or nicknames used): Daniel
    Benjamin Maffei.
        2. Position to which nominated: Commissioner, Federal Maritime
    Commission (FMC).
        3. Date of Nomination: January 3, 2023.
        4. Address (List current place of residence and office addresses):

            Residence: Information not released to the public.
            Office: 800 North Capitol Street, NW, Washington, D.C. 20573

        5. Date and Place of Birth: July 4, 1968; Syracuse, NY.
        6. Provide the name, position, and place of employment for your
    spouse (if married) and the names and ages of your children (including
    stepchildren and children by a previous marriage).
        Spouse: Abby Lynne Davidson, Managing Director, Engie Insight
    Services Inc., DBA as Engie Impact, Spokane, WA
        7. List all college and graduate schools attended, whether or not
    you were granted a degree by the institution. Provide the name of the
    institution, the dates attended, the degree received, and the date of
    the degree.

            Brown University (1986-1990)
            B.A., History and American Civilization, 1990

            Columbia University, Graduate School of Journalism (1990-1991)
            M.S., Journalism, 1991

            Harvard University, John F. Kennedy School of Government
            Master of Public Policy, 1995

        8. List all post-undergraduate employment, including the job title,
    name of employer, and inclusive dates of employment, and highlight all
    management-level jobs held and any non-managerial jobs that relate to
    the position for which you are nominated.

            March 2021 to present
            Chairman
            Federal Maritime Commission

            July 2019 to present
            Commissioner
            Federal Maritime Commission

            August 2018-January 2019
            Professor of Practice, The Graduate School of Political
            Management
            The George Washington University, Washington, D.C.

            January 2015-April 2016 & July 2018-August 2018
            Self-Employed Public Affairs Consultant
            (See answers to Question 11 for clients)

            July 2016-June 2018
            Commissioner
            Federal Maritime Commission

            April 2016-July 2016
            Senior Advisor, International Trade Administration
            U.S. Department of Commerce, Washington, D.C.

            January 2015-July 2016
            Senior Fellow
            Center for the Study of the Presidency and Congress,
            Washington, D.C.
            (Focus on improving government procurement and acquisitions)

            January 2013-January 2015
            Member of Congress (NY-24)
            United States House of Representatives, Washington, D.C.
            (Service on Committee on Armed Services, Committee on Science,
            Space and Technology, Ranking Democrat on Oversight
            Subcommittee; Managed Washington, D.C. and three district
            offices, represented the Port of Oswego and East Syracuse Rail
            Yard)

            June 2011-December 2012
            Policy Advisor
            Manatt, Phelps, Phillips, LLP, Washington, D.C.

            August 2011-May 2012
            Visiting Professor of Environmental Studies
            SUNY College of Environmental Science and Forestry, Syracuse,
            NY

            January 2011-May 2011
            Senior Fellow
            Third Way, Washington, D.C.

            January 2009-January 2011
            Member of Congress (NY-25)
            United States House of Representatives, Washington, D.C.
            (Service on Committee on Financial Services and Committee on
            the Judiciary, Managed Washington and three district offices,
            represented the East Syracuse Rail Yard)

            2006-2008
            Senior Vice President, Corporate Development
            Pinnacle Capital Management, LLC, Syracuse, NY

            2005
            Campaign Coordinator
            Matt Driscoll for Mayor, Syracuse, NY

            2005
            Summer Teaching Fellow
            Syracuse University Maxwell School of Public Affairs, Syracuse,
            NY

            1998-2005
            Senior Policy Advisor, Communications Director, Press Secretary
            Committee on Ways and Means
            U.S. House of Representatives, Washington, D.C.

            1997-1998
            Press Secretary
            U.S. Senator Daniel Patrick Moynihan, Washington, D.C.

            1995-1996
            Press Secretary
            U.S. Senator Bill Bradley, Washington, D.C.

            1995
            Summer Researcher
            Aspen Institute, Washington, D.C.

            1992-1993
            Reporter/Producer, News Administrative Assistant
            ABC Affiliate WIXT-TV (now WSYR-TV), Syracuse, NY

            1991-1992
            Weekend and Part-time Reporter
            CBS Affiliate WWNY-TV, Watertown, NY

            1991
            Part-time Anchor and Reporter
            CBS Affiliate WTNY-AM, Watertown, NY 1990

            Summer Anchor and Reporter
            WBRU-FM, Providence, RI

        9. Attach a copy of your resume.
        See Attachment.
        10. List any advisory, consultative, honorary, or other part-time
    service or positions with Federal, State, or local governments, other
    than those listed above after 18 years of age. None.
        11. List all positions held as an officer, director, trustee,
    partner, proprietor, agent, representative, or consultant of any
    corporation, company, firm, partnership, or other business, enterprise,
    educational, or other institution.

            July 2016-July 2019
            Board Member
            U.S. Association of Former Members of Congress, Washington,
            D.C.

            January 2015-April 2016
            Senior Fellow
            Center for the Study of the Presidency and Congress,
            Washington, D.C.

            April 2015-July 2016
            Member, Board of Advisors
            National Committee to Preserve Social Security & Medicare,
            Washington, D.C.

            January 2011-July 2016
            Global Panel America
            (Subsidiary to Global Panel Worldwide, Prague, Czech Republic)

            April 2015-July 2016, July 2018-August 2018
            Consultant
            Dezenhall Resources Ltd., Washington, D.C.

            March 2015-August 2015
            Consultant
            Synoptos Inc., Washington, D.C.

            January 2011-May 2011
            Senior Fellow
            Third Way, Washington, D.C.

            2005-2013
            Proprietor
            Maffei and Associates LLC, Syracuse, NY

        12. Please list each membership you have had after 18 years of age
    or currently hold with any civic, social, charitable, educational,
    political, professional, fraternal, benevolent or religiously
    affiliated organization, private club, or other membership
    organization. (For this question, you do not have to list your
    religious affiliation or membership in a religious house of worship or
    institution.). Include dates of membership and any positions you have
    held with any organization. Please note whether any such club or
    organization restricts membership on the basis of sex, race, color,
    religion, national origin, age, or disability.
        None of the following organizations listed restricts membership on
    the basis of sex, race, color, religion, national origin, age, or
    disability.

            April 2018-January 2019
            Member
            Commission on Political Civility and Effective Governance
            Center for the Study of the Presidency and Congress,
            Washington, D.C.

            April 2018 to present
            ReFormers Caucus
            Issue One, Washington, D.C.

            January 2015 to present
            Member
            U.S. Association of Former Members of Congress, Washington,
            D.C.
            (Board Member, July 2016-January 2019)

            April 2015-July 2016
            Member, Board of Advisors
            National Committee to Preserve Social Security and Medicare,
            Washington, D.C.

            October 2014-December 2015
            Member
            New York Farm Bureau, Albany, NY

            January 2011-July 2016
            Member, Board of Advisors
            Global Panel America
            (Subsidiary to Global Panel Worldwide, Prague, Czech Republic)

            January 2007-August 2015
            Active Member
            Rotary Club of DeWitt, Syracuse, NY

            January 2007-December 2014
            Member
            Italian American Athletic Club, Syracuse, NY

            January 2009-December 2014
            Member
            National Democratic Club, Washington, D.C.

            August 2011-August 2012
            Member
            United University Professions at SUNY-School of Environmental
            Science & Forestry, Syracuse, NY

            December 2007-December 2008
            Board Member
            The Newland Center for Adult Learning and Literacy, Syracuse,
            NY

            January 2007-December 2008
            Board Member
            The Spanish Action League of Onondaga County, Syracuse, NY

            January 2007-December 2008
            Board Member
            New York Donors Choose.Org, New York, NY

            January 2007-December 2007
            Advisory Board Member
            Kids Win! of Catholic Charities of Onondaga County, Syracuse,
            NY

            2005-2008
            Member from DeWitt
            Onondaga County Democratic Committee, Syracuse, NY

            2007-2012
            Member
            Sierra Club (Iroquois Chapter), Syracuse, NY

            2000 to present
            Member
            Various Regional Chapters, AAA, Washington, D.C.

        13. Have you ever been a candidate for and/or held a public office
    (elected, non-elected, or appointed)? If so, indicate whether any
    campaign has any outstanding debt, the amount, and whether you are
    personally liable for that debt.
        Yes, I have been a candidate for, and have held, public office. My
    campaign has no outstanding debt and all campaign accounts have been
    closed.
        14. List all memberships and offices held with and services
    rendered to, whether compensated or not, any political party or
    election committee within the past ten years. If you have held a paid
    position or served in a formal or official advisory position (whether
    compensated or not) in a political campaign within the past ten years,
    identify the particulars of the campaign, including the candidate, year
    of the campaign, and your title and responsibilities.
        None since 2009.
        15. Itemize all political contributions to any individual, campaign
    organization, political party, political action committee, or similar
    entity of $200 or more for the past ten years.

            Sam Roberts for Congress, $500.00, 2022

            Francis Conole for Congress, $500.00, 2022

            Terry McAuliffe for Governor, $500.00, 2012

        16. List all scholarships, fellowships, honorary degrees, honorary
    society memberships, military medals, and any other special recognition
    for outstanding service or achievements. None.
        17. List each book, article, column, letter to the editor, Internet
    blog posting, or other publication you have authored, individually or
    with others. Include a link to each publication when possible. If a
    link is not available, provide a digital copy of the publication when
    available.

            ``Injecting more containers won't solve supply chain woes'' by
            Daniel B. Maffei and Louis F. Sola in Supply Chain Dive, March
            2, 2021.

            ``How junk food information starves democracy'' by Dan Maffei
            in The Dominion Post (Wellington, New Zealand), November 5,
            2018.

            ``Why democrats would be wise to compromise on CAFE standards''
            by Dan Maffei in The Hill (on-line), August 28, 2018.

            ``The New Health Care Rationing'' in U.S. News & World Report,
            May 5, 2016.

            ``Democrats Would be Wise Not to Denigrate Innovation'' by Dan
            Maffei in The Hill (on-line) December 1, 2015.

            ``Time for patients to benefit from lifesaving drugs'' by Dan
            Maffei in The Hill (on-line), October 23, 2015.

            ``Consequences of Regulation by Clickbait'' by Dan Maffei in
            Medium (on-line), September 28, 2015.

            ``Free Affordable Care Act From Unpopular Taxes'' by Dan Maffei
            in Roll Call (on-line), August 27, 2015.

            ``A Frightening Thought: Congress' Flip-Flop on War and
            Diplomacy'' by Dan Mahaffee and Dan Maffei in The National
            Interest (on-line), August 20, 2015.

            ``Science Denial: It's Not Just A Republican Problem'' by Dan
            Maffei in Roll Call, June 4, 2015.

            ``Equal Pay for Women Helps the Economy'' by Dan Maffei in The
            (Syracuse) Post-Standard, September 16, 2014.

            ``Rep. Dan Maffei: Rebuilding Infrastructure is the Key to
            Revitalizing Central New York'' by Dan Maffei in The (Syracuse)
            Post-Standard, June 22, 2014.

            ``Rep. Dan Maffei: I didn't vote to `defund' the Affordable
            Care Act'' by Dan Maffei in The (Syracuse) Post-Standard,
            October 3, 2013.

            ``Rep. Dan Maffei on Interstate 81's Future: Two Options Aren't
            Enough'' by Dan Maffei in The (Syracuse) Post-Standard, May 30,
            2013.

            ``Rep. Dan Maffei: `It's clear to me that our middle class
            families are still being squeezed' '' by Dan Maffei in The
            (Syracuse) Post Standard, February 8, 2013.

            ``Commentary: Dan Maffei shares his vision for getting Central
            New York and the Nation back on track'' by Dan Maffei in The
            (Syracuse) Post-Standard, August 19, 2012.

            ``The Case for Corporate Tax Reform'' by Dan Maffei and Ryan
            McConaghy in Third Way Report, August 30, 2011.

            ``Doing nothing on health care not an option'' by Dan Maffei in
            The (Syracuse) Post-Standard, March 19, 2010.

            ``Building a road map in the first 100 days'' by Dan Maffei in
            The (Syracuse) Post-Standard, April 30, 2009.

            ``Campaign as Classroom: Dan Maffei MPP 1995 on lessons
            learned'' by Dan Maffei in Kennedy School Bulletin, Summer
            2008.

            ``Part of `thinking big' is working for U.S. energy
            independence'' by Dan Maffei in The (Syracuse) Post-Standard,
            May 22, 2008.

        18. List all speeches, panel discussions, and presentations (e.g.,
    PowerPoint) that you have given on topics relevant to the position for
    which you have been nominated. Include a link to each publication when
    possible. If a link is not available, provide a digital copy of the
    speech or presentation when available.
        Note: I often only use notes or an outline when speaking publicly
    and do not always have text of prepared remarks. In addition to the
    below listed events, I have spoken to or with many smaller audiences of
    companies and/or their trade associations interested learning about the
    Commission's work. In these instances, I again was speaking from brief
    notes or an outline as opposed to using prepared remarks.

            NCBFAA Government Affairs Conference, November 19, 2022

            JOC Inland Distribution Conference, September 27, 2022

            National Industrial Transportation League, May 27, 2022

            National Association of Waterfront Employees, May 19, 2022

            American Home Furnishing Association Fly-In, May 11, 2022

            American Association of Port Authorities, March 30, 2022

            TPM Conference, February 28, 2022

            NCBFAA Annual Conference, May 5, 2021

            Marine Transportation System Innovation Science and Technology
            Conference Keynote, March 18, 2021

            Transportation Club of Tacoma Luncheon Meeting, January 12,
            2021

            AgTC Major Midyear Meeting, December 9, 2020

            Global Liner Shipping Conference, November 3, 2020

            NY/NJFF&BA Annual Dinner, February 18, 2020

            Maritime Risk Symposium, November 13-15, 2019

            NY/NJFF&BA Learn & Lunch, October 16, 2019

            Global Liner Shipping Conference, May 16, 2018

            NITL Summit, January 30, 2018

            Second Annual Customs Brokers & Freight Forwarders Conference
            of the Americas, December 4-5, 2017

            Global Liner Shipping Conference, May 16-16, 2017

            Maritime Administrative Bar Association, November 29, 2016

            First Annual Customs Brokers & Freight Forwarders Conference of
            the Americas, November 14, 2016

        19. List all public statements you have made during the past ten
    years, including statements in news articles and radio and television
    appearances, which are on topics relevant to the position for which you
    have been nominated, including dates. Include a link to each statement
    when possible. If a link is not available, provide a digital copy of
    the statement when available.

            ``Market Fallout From OSRA-22 to Become Clearer in 2023''
            Journal of Commerce, January 18, 2023.

            ``FMC Nixes Claim That Proposed Per Diem Rule Adds to Port
            Congestion, Pollution'' Journal of Commerce, January 6, 2023.

            ``Statement of Chairman Daniel B. Maffei on the Denial of the
            PMSA/WSC Petition for Review'' Federal Maritime Commission,
            January 6, 2023.

            ``Fireside Chat with Daniel Maffei, Chairman, Federal Maritime
            Commission'' Cargomatic, December 2022.

            ``FMC Checking Carrier Compliance With OSRA-22 Anti-Retaliation
            Clause'' Journal of Commerce, December 15, 2022.

            ``FMC Probing Shipping Lines' Anti-Retaliation Compliance''
            Federal Maritime Commission, December 15, 2022.

            ``Free Time Comes Under Scrutiny Following Pandemic Port
            Congestion'' Journal of Commerce, December 6, 2022.

            ``Chairman Maffei Participates in US-UK Bilateral Maritime
            Consultation'' Federal Maritime Commission, December 2, 2022.

            ``Pandemic Offers Opportunity to Improve U.S. Port Flow''
            Journal of Commerce, November 30, 2022.

            ``Traffic Jam Podcast 21--Daniel B. Maffei, Chairman, Federal
            Maritime Commission'' Traffic Club of Chicago, November 29,
            2022.

            ``Statement of Chairman Daniel B. Maffei in Memory of the
            Honorable Richard A. Lidinsky'' Federal Maritime Commission,
            November 22, 2022.

            ``The 10 People Transforming Supply Chain--Including Leaders
            From Best Buy, Goodr, and Altana'' Insider, November 19, 2022.

            ``Maffei Visits Bay Area for Congressional & Industry
            Meetings'' Federal Maritime Commission, November 15, 2022.

            ``What One Importer's Legal Fight Says About the Power of Cargo
            Giants'' The New York Times, November 14, 2022.

            ``Chris Hughey Named FMC General Counsel'' Federal Maritime
            Commission, November 7, 2022.

            ``FMC's Maffei Warns of Increased Congressional Scrutiny on
            IEPs, Rails'', Journal of Commerce, September 28, 2022.

            ``Linda S. Harris Crovella Named Administrative Law Judge''
            Federal Maritime Commission, September 26, 2022.

            ``FMC Chairman Urges Ocean Carriers to Improve Their Public
            Relations'', Lloyd's List, September 24, 2021.

            ``It Costs How Much to Ship That? How One Commission is
            Tackling Inflation at the Ports'' Marketplace, September 20,
            2022.

            ``U.S. Shipping Backups Shift to East Coast and Gulf Coast
            Ports'' The Wall Street Journal, August 17, 2022.

            ``FMC Establishes OSRA 2022 Implementation Webpage'' Federal
            Maritime Commission, August 12, 2022.

            ``Can Global Shipping be Fixed? One Regulator Will Try.'' The
            New York Times, August 8, 2022.

            ``Carriers Need to Sweep Up NY-NJ Empties: FMC's Maffei''
            Journal of Commerce, August 4, 2022.

            ``Chairman Daniel B. Maffei Visits Port of New York and New
            Jersey to Meet with Stakeholders'' Federal Maritime Commission,
            August 4, 2022.

            ``New FMC Enforcement Structure'' Federal Maritime Commission,
            July 29, 2022.

            ``FMC Moving Quickly Implementing OSRA 2022'' Federal Maritime
            Commission, July 28, 2022.

            ``Statement of Chairman Maffei on E.O. 14036 & Competition''
            Federal Maritime Commission, July 15, 2022.

            ``Chairman Maffei Addresses AgTC Annual Meeting'' Federal
            Maritime Commission, June 24, 2022.

            ``Lloyd's List Podcast: Why Does President Biden Want to Punch
            Shipping CEOs?'' Lloyd's List, June 17, 2022.

            ``FMC Ready to Hit the Ground Running on OSRA: Maffei'' Journal
            of Commerce, June 17. 2022.

            ``How President Biden's Ocean Reform Act Could Impact Shipping
            and Inflation'' CNBC, June 16, 2022.

            ``Will the Shipping Reform Act Help Rebalance Scales? The FMC
            Chairman Thinks So.'' Freightwaves, June 15, 2022.

            ``Statement of Daniel B. Maffei on Passage of the Ocean
            Shipping Reform Act of 2022'' Federal Maritime Commission, June
            14, 2022.

            ``Biden Blasts Ocean Carriers as Congress Readies Tougher
            Shipping Regulations'' The Wall Street Journal, June 10, 2022.

            ``FMC Approves $2 Million Settle Agreement with Hapag-Lloyd''
            Federal Maritime Commission, June 8, 2022.

            ``FMC Announces Three New Initiatives to Assist Shippers and
            Improve Supply Chain Performance'' Federal Maritime Commission,
            June 8, 2022.

            ``Commissioner Dye Releases Final Report for Fact Finding No.
            29'' Federal Maritime Commission, May 31, 2022.

            ``With Inflation Surging, Biden Targets Ocean Shipping'' The
            New York Times, March 21, 2022.

            ``FMC Initiative Examining How Ocean Carriers Serve Export
            Shippers'' Federal Maritime Commission, April 22, 2022.

            ``Remarks of Daniel B. Maffei Chairman, Federal Maritime
            Commission, to the American Association of Port Authorities''
            Federal Maritime Commission, March 30, 2022.

            ``Export Service is New Added Focus of FMC Ocean Carrier Audit
            Program'' Federal Maritime Commission, March 21, 2022.

            ``FMC Rule Change Will Provide More Rights to Refunds for
            Cancelled or Delayed Cruises'' Federal Maritime Commission,
            March 16, 2022.

            ``FMC Meets to Discuss Ocean Carrier Enforcement Efforts & New
            Rule Protecting Cruise Passengers'' Federal Maritime
            Commission, March 16, 2022.

            ``TPM22: FMC's Maffei Sees No Collusion as Biden Targets
            Container Lines'' Journal of Commerce, March 1, 2022.

            ``Justice Department and Federal Maritime Commission Reaffirm
            and Strengthen Partnership to Promote Fair Competition in the
            Shipping Industry'' Federal Maritime Commission, February 28,
            2022.

            ``Max Vekich Sworn-In as FMC Commissioner'' Federal Maritime
            Commission, February 15, 2022.

            ``LA-LB Terminals Scrap Daytime Truck Fee Extension After
            Maffei Salvo'' Journal of Commerce, February 11, 2022.

            ``Statement of Daniel B. Maffei on Proposed PierPass Change''
            Federal Maritime Commission, February 11, 2022.

            ``Lawmakers, Regulators, Seek to Rein In Fees Carriers Charge
            at Ports'' The Wall Street Journal February 6, 2022.

            ``FMC Hires New Secretary'' Federal Maritime Commission,
            November 29, 2021.

            ``New Supply Chain Initiatives Announced at FMC Meeting''
            Federal Maritime Commission, November 17, 2021.

            ``FMC Effort Will Examine How Data Can Improve Ocean Cargo
            Velocity'' Federal Maritime Commission, November 15, 2021.

            ``U.S. Regulator Expects to Find Abuses in Shipping Amid Supply
            Chain Woes'' Reuters, November 2, 2021.

            ``Letter of Commissioners Daniel Maffei and Louis Sola to
            President Joe Biden'' Federal Maritime Commission, October 25,
            2021.

            ``White House Scrambles to Address Looming Christmas Crisis''
            Politico, October 13, 2021.

            ``Chairman Daniel B. Maffei Visits West Coast Ports'' Federal
            Maritime Commission, September 30, 2021.

            ``Chairman Maffei Addresses NCBFAA Conference'' Federal
            Maritime Commission, September 30, 2021.

            ``Lloyd's List Podcast: The Regulators View of Container
            Chaos'' Lloyd's List, September 24, 2021.

            ``FMC Announces National Shipper Advisory Committee
            Membership'' Federal Maritime Commission, September 9, 2021.

            ``International Shipping Competition Agencies Meet'' Federal
            Maritime Commission, September 8, 2021

            ``FMC's Scope in Shipping Crisis Limited: Maffei'' Journal of
            Commerce, October 18, 2021.

            ``Commission Questions Shipping Lines About Surcharges''
            Federal Maritime Commission, August 4, 2021.

            ``FMC's Maffei Says Capacity Demand Won't Recede `Until Late
            2022' '' Freightwaves, August 3, 2021.

            ``FMC Establishes Ocean Carriers Audit Program'' Federal
            Maritime Commission, July 20, 2021.

            ``New FMC and DoJ MOU Supports Interagency Collaboration on
            Antitrust Issues'' Federal Maritime Commission, July 12, 2021.

            ``Chairman Daniel B. Maffei Attends White House Signing
            Ceremony for Executive Order on Competition'' Federal Maritime
            Commission, July 9, 2021.

            ``FMC Onboard for Biden's Ocean Carrier `Crackdown' ''
            Freightwaves, July 8, 2021.

            ``Chairman Maffei and Commissioner Bentzel Tour the Port of New
            York and New Jersey, Meet with Stakeholders on Cargo Operations
            and FMC Enforcement Priorities'' Federal Maritime Commission,
            June 15, 2021.

            ``Exclusive: Proposals Submitted to Address Ocean Shipping
            Crisis'' Freightwaves, June 10, 2021.

            ``Remarks as Provided by Chairman Daniel B. Maffei: Celebrating
            Maritime Day 2021'' Federal Maritime Commission, May 20, 2021.

            ``Commission Meeting Addresses Fact Finding 29 and Alliance
            Monitoring'' Federal Maritime Commission, April 7, 2021.

            ``First Interview With New Federal Maritime Commission
            Chairman'' Freightwaves, April 1, 2021.

            ``Daniel B. Maffei Designated as the Chairman of the Federal
            Maritime Commission'' Federal Maritime Commission, March 30,
            2021.

            ``Chairman Maffei Discusses Port & Supply Chain Issues During
            Port of LA Briefing'' Federal Maritime Commission, May 17,
            2021.

            ``Top U.S. Maritime Regulator Wants to Strengthen Enforcement''
            Journal of Commerce, May 12, 2021.

            ``Letter of Commissioners Maffei and Bentzel to Great Lakes
            Governors'' Federal Maritime Commission, March 8, 2021.

            ``Statement of Commissioners Maffei and Bentzel: Urging
            Governors to Prioritize Maritime Worker Vaccinations'' Federal
            Maritime Commission, March 3, 2021.

            ``Commissioner Maffei Visits Port Newark Container Terminal''
            Federal Maritime Commission, February 26, 2021.

            ``Commissioners Maffei and Bentzel Urge Biden Administration to
            Prioritize Vaccinations for the Maritime Industry'' Federal
            Maritime Commission, January 29, 2021.

            ``Commissioners Bentzel and Maffei Urge Ocean Carriers to Carry
            U.S. Exports'' Federal Maritime Commission, December 17, 2020.

            ``Commissioners Bentzel and Maffei Urge MARAD and CDC to
            Prioritize Maritime Workforce'' Federal Maritime Commission,
            December 4, 2020.

            ``Commissioner Daniel B. Maffei Statement on Expanded Supply
            Chain Investigation'' Federal Maritime Commission, November 20,
            2020.

            ``Commissioner Daniel B. Maffei Statement on World Shipping
            Council Agreement'' Federal Maritime Commission, November 16,
            2020.

            ``Commissioner Maffei Visits Port of New York and New Jersey''
            Federal Maritime Commission, October 2, 2020.

            ``Commissioner Daniel B. Maffei Statement on Detention and
            Demurrage Interpretive Rule'' Federal Maritime Commission,
            April 29, 2020.

            ``Commissioner Daniel B. Maffei Statement on Coronavirus and
            the Shipping Industry'' Federal Maritime Commission, March 26,
            2020.

            ``Commissioner Daniel B. Maffei Statement in Memoriam Rep.
            Richard L. Hanna'' Federal Maritime Commission, March 24, 2020.

            ``FMC Monitors Coronavirus' Impacts on Container Industry's
            Competitive Health'' Freightwaves, March 13, 2020.

            ``Commissioner Daniel B. Maffei Statement on Coronavirus and
            the Shipping Industry'' Federal Maritime Commission, March 12,
            2020.

            ``Commissioners Bentzel & Maffei Travel to Houston, Texas''
            Federal Maritime Commission, February 18, 2020.

            ``Commissioner Daniel B. Maffei participates in Maritime Risk
            Symposium'' Federal Maritime Commission, November 27, 2019.

            ``Commissioner Daniel B. Maffei visits Singapore for Global
            Maritime Forum'' Federal Maritime Commission, November 25,
            2019.

            ``Statement from Commissioner Maffei on Docket Nos. 16-01, 16-
            07, 16-10, and 16-11'' Federal Maritime Commission, October 21,
            2019.

            ``Commissioner Daniel Maffei Visits NYSHEX HQ in New York''
            Federal Maritime Commission, October 11, 2019.

            ``Commissioners Maffei & Sola Travel to Gulf of Mexico Ports''
            Federal Maritime Commission, October 2, 2019.

            ``Statement from Commissioner Maffei on Puerto Rico Nuevo
            Terminals LLC Cooperative Working Agreement'' Federal Maritime
            Commission, August 29, 2019.

            ``Commissioner Maffei votes in favor of amendments to rules
            governing NRAs and NSAs'' Federal Maritime Commission, June 29,
            2019.

            ``Statement from Commissioner Maffei regarding Amendment to the
            West Coast Marine Terminal Operator Agreement'' Federal
            Maritime Commission, May 24, 2018.

            ``Statement from Commissioner Maffei on Formal Investigation
            into Detention and Demurrage'' Federal Maritime Commission,
            March 7, 2018.

            ``Statement of Commissioner Daniel Maffei re Hearings on the
            Petition of the Coalition for Fair Port Practices'' Federal
            Maritime Commission, January 16, 2018.

            ``Mission Failure--Exploring the Problems of Policy Schools Can
            Ignite New Ways to Realize the Mission of Educating Public
            Servants in the 21st Century'' Stanford Social Innovation
            Review, September 20, 2018.

            ``Statement of Commissioner Maffei on the NYSHEX Agreements''
            Federal Maritime Commission, December 4, 2017.

            ``Statement from Commissioner Maffei commending the
            Commission's vote to hold public hearings on Petition P4-16''
            Federal Maritime Commission, September 20, 2017.

            ``Statement from Commissioner Maffei on Bankruptcy Amendment to
            The Alliance'' Federal Maritime Commission, September 14, 2017.

            ``Dan Maffei, the Cerebral Democrat and Perennial Candidate''
            WRVO, October 30, 2014.

        20. List all digital platforms (including social media and other
    digital content sites) on which you currently or have formerly operated
    an account, regardless of whether or not the account was held in your
    name or an alias. Include the full name of an ``alias'' or ``handle'',
    including the complete URL and username with hyperlinks, you have used
    on each of the named platforms. Indicate whether the account is active,
    deleted, or dormant. Include a link to each account if possible.

            LinkedIn: /Daniel-maffei-38905430/ (Active)

            Twitter: @danielbmaffei (Dormant)

            Facebook: /danmaffeiNY (Dormant)

            Note: I believe my Congressional office had a Facebook account,
            but I cannot locate anything about it. My Congressional
            campaigns utilized the above Facebook link, but it is possible
            my campaigns had other social media accounts for which I have
            no access or identifying information. My campaigns had a
            website (maffeiforcongress.com). My Congressional office had a
            website that I believe the U.S. House of Representatives keeps
            archived. I also currently have a webpage on the Federal
            Maritime Commission website.

        21. Please identify each instance in which you have testified
    orally or in writing before Congress in a governmental or non-
    governmental capacity and specify the date and subject matter of each
    testimony.

            As a Member of Congress, I testified before committees, of
            which I was not a member, which had jurisdiction over
            legislation that I sponsored. In 2009, I testified before the
            U.S. House of Representatives Committee on Energy and Commerce
            advocating passage of the Automobile Dealer Economic Rights
            Restoration Act (ADERRA). In 2011, I testified before the U.S.
            House of Representatives Committee on Natural Resources
            advocating passage of the Harriet Tubman National Historic
            Parks Act.

            Roundtable Discussion on Agricultural Exports and Supply Chain
            Disruption hosted by Representatives Costa, Garamendi, Lee and
            Thompson, Port of Oakland, November 1, 2022.

            ``Executive Session and Ocean Shipping Reform Act'', Senate
            Committee on Commerce, Science, and Transportation, March 3,
            2022.

            ``Review of Fiscal Year 2023 Budget Request for the Coast Guard
            and Maritime Transportation Programs'', Subcommittee on Coast
            Guard and Maritime Transportation, House Committee on
            Transportation and Infrastructure, April 27, 2022.

            ``Review of Fiscal Year 2022 Budget for the Coast Guard and
            Maritime Transportation Programs'', Subcommittee on Coast Guard
            and Maritime Transportation, House Committee on Transportation
            and Infrastructure, July 21, 2021.

            ``Impacts of Shipping Container Shortages, Delays, and
            Increased Demand on the North American Supply Chain'',
            Subcommittee on Coast Guard and Maritime Transportation, House
            Committee on Transportation and Infrastructure, June 15, 2021.

        22. Given the current mission, major programs, and major
    operational objectives of the department/agency to which you have been
    nominated, what in your background or employment experience do you
    believe affirmatively qualifies you for appointment to the position for
    which you have been nominated, and why do you wish to serve in that
    position?
        I have more than six years' experience as a Commissioner on the
    FMC. Since March of 2021, I have served as the Chairman. For the
    entirety of that time, I have worked closely and well with my fellow
    Commissioners, the senior management, and staff of the FMC.
        I continue to apply the law and regulations, understand the
    intricacies of the industry, and receive varying perspectives from
    stakeholders. While at the Commission, I have remained focused on
    understanding and advocating action where appropriate on challenges
    faced by U.S. shippers, especially exporters. Having the invaluable
    experience I have gained at the FMC is certainly an important
    qualification that I have for this maritime industry oversight moving
    forward.
        In 2016 and 2018, I mentioned that my time as a former Member of
    Congress would be valuable for several reasons that still hold true
    today. First, the nature of the district I represented with
    agricultural areas, a Great Lakes international port, and supply chains
    that involve intermodal traffic from the Port of New York/New Jersey
    makes me intimately aware of the challenges faced by stakeholders
    (consumers, shippers, and intermediaries) in many areas throughout the
    United States--especially the Midwest.
        Second, I remain committed to the relationship regarding
    communication between the FMC and Congress. As a Commissioner and
    currently Chairman during an active time of ocean shipping reform, I
    redoubled my commitment to communicate with Congress to ensure that the
    FMC properly interprets the Shipping Act and, where updates to the law
    may be needed. I strive to be a valuable resource to the House and
    Senate staffers of both Democratic and Republican members and believe I
    have been helpful to them in finding bipartisan solutions to the ocean
    shipping challenges. This experience in Congress and working with
    Congress is especially pertinent in the current efforts to implement
    the Ocean Shipping Reform Act of 2022 and the several FMC rulemakings
    it mandates.
        I have been an effective communicator and team builder in a wide
    variety of context including the media, private sector, and the
    legislative branch. I have substantial experience working with
    disparate interests in my district and state, as well as with Congress,
    to bring groups together to develop and implement specific solutions.
    All this experience indeed helped me to be effective in the years I
    already served on the FMC and remain important now.
        23. What do you believe are your responsibilities, if confirmed, to
    ensure that the department/agency has proper management and accounting
    controls, and what experience do you have in managing a large
    organization?
        As I stated in 2016 and 2018, the responsibility of the
    Commissioners of the FMC to ensure proper management and accounting is
    crucial to the FMC's success. As a small agency, the FMC has continued
    to operate on a lean budget to execute a large mandate to oversee
    international trade (130 people for approximately $1.3 trillion of
    commerce). During a critical time in this industry, demand for
    Commission services has not been higher in recent years. Our Office of
    Consumer Affairs and Dispute Resolution Services continues to receive
    voluminous requests from the public for assistance. Aggrieved shippers
    continue to share information with us about unsatisfactory service--all
    of which is reviewed for potential legal violations. The FMC continues
    to meet its statutory obligations to facilitate a positive impact on
    the economic recovery of U.S. importers and exporters, which depend on
    a maritime industry providing stable, reliable ocean transportation.
        In addition, prior to my Commission experience, I have managed a
    Congressional office that included a Washington, D.C. office and three
    district offices within an economically challenged and diverse region
    of the country. In addition, I have managed teams in the private sector
    in completing specific deliverables. Given that this specific
    appointment is to a Commission in which five people of diverse
    backgrounds work together to manage the organization, my experience as
    a senior staff person on a Congressional committee and then as a Member
    of Congress is particularly relevant. For example, as Ranking Member of
    the Subcommittee on the Oversight of the House Committee on Science,
    Space, and Technology, I worked very closely in collaboration with the
    Chairman and other subcommittee members to plan most of the hearings in
    a bipartisan way. Similarly, I have worked closely with my Republican
    and Democrat colleagues at the Commission, and while we have some
    disagreements, I have contributed to us all rowing in the same
    direction to serve the American shipper.
        24. What do you believe to be the top three challenges facing the
    department/agency, and why?

       Exports & Consumer Assistance

       Enforcement

       OSRA Implementation
    Exports & Consumer Assistance

        Addressing the challenges American businesses face in using ocean
    transportation to reach overseas markets is both a top priority I have
    as Chairman as well as a challenge for the Federal Maritime Commission
    to address.
        Ocean carriers have created services that meet the service
    requirements of the majority of their customers. The overwhelming
    majority of international trade that moves by ocean is import cargo. In
    some respects, export shippers have benefitted from riding on the
    ``back haul'' of a service string. The chief benefit being they have
    typically been charged a low rate. There has always been a substantial
    spread in the cost to import a container into the United States versus
    exporting from the United States to other nations. Even at the height
    of the pandemic where the cost to ship a container hit historic highs,
    it was substantially less expensive to export a container than to
    import one. The reason for this is that ocean carriers are more
    interested in generating sufficient revenue to pay for a ship's return
    voyage overseas as opposed to charging a rate that generates a profit.
    In ``normal'' years, there has been ample space to accommodate the
    requirements of export shippers.
        That is not to say that even in the pre-pandemic era shippers were
    not frustrated by challenges with securing intermodal equipment,
    meeting deadlines for getting containers aboard a vessel or having
    their shipments ``rolled''.
        Nonetheless, the pandemic brought into stark relief the issues
    export shippers must overcome in securing service and underscored the
    reality that the ``headhaul'', the overseas-to-U.S. leg of a voyage, is
    what is the business priority for ocean carriers.
        This must be addressed, and I used my authority as Chairman to
    direct Commission resources be prioritized toward identifying ways to
    assist exporters. I challenged Commission staff to think creatively on
    how we could use our existing authorities to aid exporters, as well as
    what approaches we could take beyond our authorities. In response, we:

       Focused our resources in our Office of Consumer Affairs and
            Dispute Resolution Services on assisting exporters who request
            assistance;

       Hired an Export Expert to work exclusively on exporter
            issues;

       Prioritized handling any cases involving exports for
            potential enforcement violations;

       Issued policy statements and instructional information on
            how to bring complaints at the Commission;

       Used our Vessel-Operating Common Carrier Audit Team to
            engage ocean carriers about how they serve U.S. export shippers
            and what opportunities exist for shipping lines to improve the
            service they offer American exporters; and,

       Continue our work to identify potential rulemakings that
            might make exporting less burdensome on U.S. companies.

        Foundationally, these are complicated, interconnected, and global
    problems that can only be addressed by many parties and organizations
    demonstrating leadership and taking responsibility for matters where
    they can make a difference. There is no one government agency, nor one
    company capable of unilaterally addressing the myriad causes that have
    so totally disrupted the international ocean freight delivery system.
    The Commission recognizes the importance of U.S. exporters, and we will
    work with any and all companies, associations, or other U.S. Government
    agencies to improve the ability for U.S. export shippers to gain access
    to more reliable ocean transportation services.
    Enforcement
        The Commission remains vigilant and protects the public from
    unlawful, unfair, and deceptive practices. We will continue to respond
    as comprehensively, aggressively, and creatively as possible within the
    bounds of our present authorities.
        Since I became Chairman, I redirected the FMC resources to be
    focused on issues discussed above as priorities. The Commission is
    focused on deterrence through enforcement by increasing its
    investigatory and enforcement activity.
        We have increased investigative and enforcement activity, paying
    particular attention to ocean carriers. Initiating a new focus on
    addressing fees and surcharges with the goal of bringing greater
    transparency to rates was also put in place. In addition, we have
    increased the monitoring requirements of ocean carrier alliances and
    continue to assess if further changes are needed. On the oversight of
    markets, we have invested in our Bureau of Trade Analysis and their
    ability to review markets and alliances by adding staff with
    backgrounds in data science and analysis. Moreover, we have provided
    guidance to shippers on bringing complaints at the Federal Maritime
    Commission and we are seeing an increase in both formal and especially
    informal docketed proceedings being filed.
        With international counterparts, we have consulted with competition
    authorities from the European Union and the People's Republic of China,
    regarding our respective efforts to ensure a competitive marketplace
    for ocean transportation services, as well as observations and
    conclusions from each regime's monitoring work. I directed, following
    conversations with Commissioner Dye, that the FMC create the Vessel-
    Operating Common Carrier Audit Program to help ensure with compliance
    on the Commission's interpretive rule on detention and demurrage and
    other important regulations.
        Accordingly, the FMC, through the Bureau of Enforcement,
    Investigations, and Compliance, will continue to investigate for any
    illegal conduct in the marketplace and stand ready to prosecute
    potential violations by any entity under our jurisdiction.
        Overarchingly, I am committed to making the Commission's
    enforcement program more capable and prepared than it has been in many
    years. Reorganizing our former Bureau of Enforcement and expanding the
    number of investigators, analysts, and attorneys devoted to seeking out
    non-compliant behavior is being done, not just in response to what
    happened during the pandemic, but to be best prepared for the next
    shock to the supply chain. Our goal is to mature our enforcement
    program to be more than sufficiently nimble to quickly pivot to address
    the consequences of the inevitable next disruption and to have the
    instincts to look for ways to use existing statutory authority to
    directly address relevant issues and disputes. We are on the right
    path.
    Implementing OSRA 2022
        I am committed to full implementation of the Ocean Shipping Reform
    Act of 2022 and in meeting not only the black letter requirements of
    the law, but in satisfying the intent of the Congress.
        The Commission has moved forward expeditiously and decisively in
    implementing OSRA 2022. We have already made substantive progress in
    meeting many of the law's requirements and we are working diligently to
    fulfill the remaining requirements. We are being transparent in our
    work, establishing a dedicated page on our website where all Commission
    activity is being posted and we are providing a public update on
    implementation at each of our Commission meetings.
        This has been essentially an ``all hands'' endeavor. The Commission
    is a small organization, consisting of approximately 130 employees, not
    all of whom are involved in monitoring, enforcement, licensing,
    consumer assistance and other related core functions. That noted, there
    is not a bureau or office at the Commission not engaged in the work
    necessary to implement all provisions of OSRA 2022 that are our
    responsibility. This is in addition to simultaneously continuing our
    work in the traditional mission areas of the FMC. No one has complained
    about the added work, but the pace and scope of implementation-related
    taskings has resulted in a considerable number of added assignments for
    everyone. Additional authorized and appropriated funds provided by
    Congress are being used to add needed staff to assist with OSRA
    implementation and to expand the capabilities and responsiveness of the
    Commission.
        We will take full advantage of this support. The additional staff
    and resources we are hiring and procuring are needed to realize the
    full potential of OSRA 2022.
        We have already seen a positive public response to new authorities
    provided to the Commission, particularly in the area of Charge
    Complaints. Since enactment, more than 200 Charge Complaints have been
    filed at the Commission and more than 70 of those met the standard for
    being investigated. Commission staff estimate that more than $700,000
    in contested fees have been waived or refunded by ocean carriers.
        While we are proud of how quickly we created a way to accept,
    review, investigate, and dispose of Charge Complaints, if past is
    precedent, we will need to commit more resources to this activity.
    Again, the support we received from Congress will help us in making
    certain we have adequate resources devoted to this activity.
        Similarly, our Office of the Administrative Law Judges has seen a
    significant increase in filings of all classes of complaints. We have
    added a second Administrative Law Judge and are in the process of
    hiring a third. These are not simple cases. They are matters involving
    international commerce with often complicated matters of law in
    question. Cases frequently involve considerable procedural motions, and
    they are not routine cases. We must continue to invest in our Office of
    Administrative Law Judges to ensure the public benefits from the most
    rapid, full hearing of cases deserved. In addition to adding staff to
    this function, we are reviewing the procurement of additional
    information technology to assist in court management.
        OSRA 2022 provides the Commission with many new and welcomed
    authorities that once fully implemented will benefit American
    companies.
                       b. potential conflicts of interest
        1. Describe all financial arrangements, deferred compensation
    agreements, and other continuing dealings with business associates,
    clients, or customers. Please include information related to retirement
    accounts, such as a 401(k) or pension plan.
        I have both FERS and TSP accounts from my service as a
    Congressional staff person and Member of Congress.
        2. Do you have any commitments or agreements, formal or informal,
    to maintain employment, affiliation, or practice with any business,
    association, or other organization during your appointment? If so,
    please explain. No.
        3. Indicate any investments, obligations, liabilities, or other
    relationships which could involve potential conflicts of interest in
    the position to which you have been nominated. Explain how you will
    resolve each potential conflict of interest. None.
        4. Describe any business relationship, dealing, or financial
    transaction which you have had during the last ten years, whether for
    yourself, on behalf of a client, or acting as an agent, that could in
    any way constitute or result in a possible conflict of interest in the
    position to which you have been nominated. Explain how you will resolve
    each potential conflict of interest. None.
        5. Identify any other potential conflicts of interest, and explain
    how you will resolve each potential conflict of interest. None.
        6. Describe any activity during the past ten years, including the
    names of clients represented, in which you have been engaged for the
    purpose of directly or indirectly influencing the passage, defeat, or
    modification of any legislation or affecting the administration and
    execution of law or public policy.
        In my two terms as a Member of Congress, as well as during my
    campaigns, I advocated publicly legislative positions on hundreds of
    topics. I am happy to provide specific examples as needed.
                                c. legal matters
        1. Have you ever been disciplined or cited for a breach of ethics,
    professional misconduct, or retaliation by, or been the subject of a
    complaint to, any court, administrative agency, the Office of Special
    Counsel, an Inspector General, professional association, disciplinary
    committee, or other professional group? If yes:

      a.  Provide the name of court, agency, association, committee, or
            group;

      b.  Provide the date the citation, disciplinary action, complaint, or
            personnel action was issued or initiated;

      c.  Describe the citation, disciplinary action, complaint, or
            personnel action;

      d.  Provide the results of the citation, disciplinary action,
            complaint, or personnel action.
        No.
        2. Have you ever been investigated, arrested, charged, or held by
    any Federal, State, or other law enforcement authority of any Federal,
    State, county, or municipal entity, other than for a minor traffic
    offense? If so, please explain.
        No, except for background investigations preceding potential
    Presidential appointments.
        3. Have you or any business or nonprofit of which you are or were
    an officer ever been involved as a party in an administrative agency
    proceeding, criminal proceeding, or civil litigation? If so, please
    explain.
        In my capacity as a candidate for Congress, I was a party to civil
    litigation in the following instances:
        I was a plaintiff in lawsuits filed in November 2012 and October
    2014, respectively, to request securing of ballots to protect against
    the possibility of vote counting irregularities in the respective
    year's general election. Because of each suit, the ballots were
    impounded after the 2012 and 2014 elections.
        I was a Respondent in a lawsuit filed in May 2014 by the Onondaga
    County Republican Committee (OCRC), which claimed that my campaign
    manager should not have been issued voter registration in New York
    because the OCRC alleged that he was only a temporary resident;
    accordingly, the OCRC contended the individual should not have been
    permitted to circulate candidate petitions for the Working Families
    Party. The court ruled in my favor, concluding my campaign manager was
    properly registered in New York and had conducted himself properly.
        In November 2010, I was involved in a very close election and filed
    a court case to attempt to have all ballots counted. The judge
    eventually ruled that we had counted all of the votes. The lawsuit was
    resolved when I conceded the election.
        4. Have you ever been convicted (including pleas of guilty or nolo
    contendere) of any criminal violation other than a minor traffic
    offense? If so, please explain. No.
        5. Have you ever been accused, formally or informally, of sexual
    harassment or discrimination on the basis of sex, race, religion, or
    any other basis? If so, please explain. No.
        6. Please advise the Committee of any additional information,
    favorable or unfavorable, which you feel should be disclosed in
    connection with your nomination.
        I know of no applicable additional information.
                         d. relationship with committee
        1. Will you ensure that your department/agency complies with
    deadlines for information set by congressional committees, and that
    your department/agency endeavors to timely comply with requests for
    information from individual Members of Congress, including requests
    from members in the minority? Yes.
        2. Will you ensure that your department/agency does whatever it can
    to protect congressional witnesses and whistleblowers from reprisal for
    their testimony and disclosures? Yes.
        3. Will you cooperate in providing the Committee with requested
    witnesses, including technical experts and career employees, with
    firsthand knowledge of matters of interest to the Committee? Yes.
        4. Are you willing to appear and testify before any duly
    constituted committee of the Congress on such occasions as you may be
    reasonably requested to do so? Yes.
                                     ______

                                   Attachment
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Chair Peters. Well, thank you, Chairman Maffei.
        Our second nominee, Rebecca Dye, has been a Commissioner of
    the FMC since 2002. She has been reappointed and confirmed
    three times, first by President Bush, and subsequently by
    President Obama. Prior to joining the Commission, Ms. Dye
    served as Counsel in various offices of the U.S. Coast Guard,
    U.S. Maritime Administration, and the U.S. House of
    Representatives.
        Commissioner Dye, it is a pleasure to have you before us
    here today. And you are now recognized for your opening
    comments.

    STATEMENT OF HON. REBECCA F. DYE, NOMINEE TO BE A COMMISSIONER,
                      FEDERAL MARITIME COMMISSION

        Ms. Dye. Thank you very much, Mr. Chairman. I appreciate
    that introduction. I want to say, first of all, that I
    appreciate my colleague, Louis Sola, who is here today to
    support us, and I really appreciate the opportunity to testify
    here today before you.
        It is an honor to appear, as renominated by President Biden
    to serve as a Commissioner of the Federal Maritime Commission.
    I welcome the opportunity, if confirmed, to continue the
    important work of the Commission at this critical time for the
    Nation's freight delivery system.
        I have been fortunate to serve with excellent colleagues at
    the Commission during my tenure. Our current Chairman, Dan
    Maffei, is the best partner I could ask for as we carry out the
    responsibilities of the Commission. During the past 5 years of
    the Commission, I have been honored that my colleagues place
    their trust in me to serve as Fact Finding Officer in two
    investigations to address major concerns of U.S. exporters and
    importers.
        The first, Fact Finding 28, stemmed from a petition filed
    at the Commission by the Coalition for Fair Port Practices, a
    broad coalition of shippers and others concerned with detention
    and demurrage fees charged by ocean carriers, seaports, and
    marine terminal operators.
        I recommended, and the Commission approved, an approach to
    address detention and demurrage practices based upon a
    principle, ``incentive principle.''
        If cargo owners cannot be further incentivized to pick up
    cargo or return equipment, no charge may be assessed. The
    ``incentive principle'' was embodied in a Commission Rule,
    though characterized as an interpretive rule, it is
    enforceable, and the Commission has moved forward with
    investigations and cases to enforce it.
        I am pleased to say that this effort is bearing fruit in
    changing behavior in the marketplace. I am gratified that OSRA
    2022 recognized and ratified the interpretive rule and gives
    the Commission the opportunity to further clarify specific
    practices that would be unreasonable under the general
    incentive principle.
        The second investigation, Fact Finding 29, ``International
    Ocean Transportation Supply Chain Engagement,'' was ordered to
    address problems in the U.S. supply chain caused by the COVID-
    19 pandemic. As a result of my investigation, I recommended
    statutory and administrative changes to Congress and the
    Commission. I appreciate your support of the implementation of
    my statutory recommendations.
        The Commission is moving forward with the final Fact
    Finding 29 recommendations to address supply chain problems
    that occurred during the pandemic. Most important among these
    recommendations is a new Commission ``International Ocean
    Shipping Supply Chain Program'' with dedicated personnel.
        Second, is the new FMC ``Ocean Carrier Compliance
    Program'', including a new requirement for ocean common
    carriers, seaports, and marine terminals to employ an FMC
    Compliance Officer. And I am pleased that our carriers, very
    quickly, did nominate compliance officers, and it has been a
    great aid to us in transmitting our intent for obeying the law.
    Both recommendations have been implemented by the Commission.
        If confirmed, I look forward to working with Chairman
    Maffei and my colleagues to maintain the professionalism of our
    flagship competition program among ocean carriers, seaports,
    and marine terminals, to increase stakeholder outreach, and
    work with FMC supply chain innovation teams to craft clear and
    predictable commercial solutions to address supply chain
    bottlenecks.
        I pledge to work closely with the Members of this Committee
    to make our Nation's supply chain more dependable and
    responsive to the needs of American importers and exporters.
    Thank you.
        [The prepared statement and biographical information of Ms.
    Dye follow:]

           Prepared Statement of Hon. Rebecca F. Dye, Commissioner,
                          Federal Maritime Commission
        Chair Cantwell, Ranking Member Cruz, Members of the Committee,
    thank you for the opportunity to testify here today. It is an honor to
    appear before you as renominated by President Biden to serve as a
    Commissioner at the Federal Maritime Commission. I welcome the
    opportunity, if confirmed, to continue the important work of the
    Commission at this critical time for the Nation's freight delivery
    supply chain.
        I have been fortunate to serve with excellent colleagues at the
    Commission during my tenure. Our current Chairman, Dan Maffei, is the
    best partner I could ask for as we carry out the responsibilities of
    the Federal Maritime Commission.
        During the past five years at the Commission, I have been honored
    that my colleagues placed their trust in me to serve as Fact Finding
    Officer in two investigations to address major concerns of U.S.
    exporters and importers.
        The first, Fact Finding 28, stemmed from a petition filed at the
    Commission by the Coalition for Fair Port Practices, a broad coalition
    of shippers and others concerned with detention and demurrage fees
    charged by ocean carriers, seaports, and marine terminal operators. I
    recommended, and the Commission approved, an approach to address
    detention and demurrage practices based upon a principle, the
    ``incentive principle.'' If cargo owners cannot be further incentivized
    to pick up cargo or return equipment, no charge may be assessed. This
    ``incentive principle'' was embodied in a Commission rule. Though
    characterized as an interpretive rule, it is enforceable, and the
    Commission has moved forward with investigations and cases to enforce
    it. I am pleased to say that this effort is bearing fruit and changing
    behavior in the marketplace. I am gratified that OSRA 2022 recognized
    and ratified the interpretive rule and gives the Commission the
    opportunity to further clarify specific practices that would be
    unreasonable under the general incentive principle.
        The second investigation, Fact Finding 29, ``International Ocean
    Transportation Supply Chain Engagement'', was ordered to address
    problems in the U.S. supply chain caused by the COVID-19 pandemic. As a
    result of my investigation, I recommended statutory and administrative
    changes to Congress and the Commission. I appreciate your support of
    the implementation of my statutory recommendations. The Commission is
    moving forward with the final Fact Finding 29 recommendations to
    address supply chain problems that occurred during the pandemic.
        Most important among these recommendations is a new Commission
    ``International Ocean Shipping Supply Chain Program'' with dedicated
    personnel. Second, is the new FMC ``Ocean Carrier Compliance Program'',
    including a new requirement for ocean common carriers, seaports, and
    marine terminals to employ an FMC Compliance Officer. Both
    recommendations have been implemented by the Commission.
        If confirmed, I look forward to working with Chairman Maffei and my
    colleagues to maintain the professionalism of our flagship competition
    program among ocean carriers, seaports, and marine terminals; increase
    stakeholder outreach; and work with FMC Supply Chain Innovation Teams
    to craft clear and predictable commercial solutions to address supply
    chain bottlenecks.
        I also pledge to work closely with the Members of this Committee to
    make our Nation's supply chain more dependable and responsive to the
    needs of American importers and exporters.
        Thank you.
                                     ______

                          a. biographical information
        1. Name (Include any former names or nicknames used):

            Rebecca Feemster Dye
            Maiden Name: Rebecca Lynn Feemster
            Nickname: ``Becky''

        2. Position to which nominated: Commissioner, Federal Maritime
    Commission.
        3. Date of Nomination: January 3, 2023.
        4. Address (List current place of residence and office addresses):

            Residence: Information not released to the public.
            Office: 800 North Capitol Street, N.W., Washington, D.C. 20573

        5. Date and Place of Birth: May 8, 1952; Charlotte, North Carolina.
        6. Provide the name, position, and place of employment for your
    spouse (if married) and the names and ages of your children (including
    stepchildren and children by a previous marriage).
        I am divorced. My daughter is Caroline Lytton Jones, age 33.
        7. List all college and graduate schools attended, whether or not
    you were granted a degree by the institution. Provide the name of the
    institution, the dates attended, the degree received, and the date of
    the degree.

            University of North Carolina at Greensboro
            Attended 1970-1972

            University of North Carolina at Chapel Hill
            Bachelor of Arts awarded May 1974

            University of North Carolina School of Law
            Juris Doctorate awarded May 1977

        8. List all post-undergraduate employment, including the job title,
    name of employer, and inclusive dates of employment, and highlight all
    management-level jobs held and any non-managerial jobs that relate to
    the position for which you are nominated.

            December 2002 to present
            Commissioner
            Federal Maritime Commission

            January 1995-December 2002
            Counsel and Subcommittee Staff Director
            Committee on Transportation and Infrastructure
            U.S. House of Representatives

            February 1987-January 1995
            Minority Counsel
            Committee on Merchant Marine and Fisheries
            U.S. House of Representatives

            June 1985-February 1987
            Legislative Attorney
            Legislation Division, Office of the Chief Counsel
            Maritime Administration of the U.S. Department of
            Transportation

            August 1983-June 1985
            Law Instructor
            United States Coast Guard Academy

            June-August 1983
            Legislative Attorney
            Office of the Assistant Counsel for Legislation
            United States Department of Transportation

            1980-1983
            Legislative Attorney
            Legislation Division, Office of the Chief Counsel
            United States Coast Guard Headquarters

            1979-1980
            Assistant Division Chief
            Legal Administration Division, Office of the Chief Counsel
            United States Coast Guard Headquarters

            1978-1979
            Attorney Project Coordinator
            Legal Services of North Carolina

            1977-1978
            Special Counsel
            Broughton Psychiatric Hospital

            1977 (Part-time)
            Instructor
            Reading Research Foundation

            1976-1977 (Part-time)
            Sales Clerk
            Belk-Leggett Co.

            1975-1976 (Part-time)
            UNC School of Law library

            1975 (Part-time)
            Instructor
            Reading Research Foundation

        9. Attach a copy of your resume.
        See attached.
        10. List any advisory, consultative, honorary, or other part-time
    service or positions with Federal, State, or local governments, other
    than those listed above after 18 years of age. None.
        11. List all positions held as an officer, director, trustee,
    partner, proprietor, agent, representative, or consultant of any
    corporation, company, firm, partnership, or other business, enterprise,
    educational, or other institution.

            Executive Women in Government (Nonprofit):
            Vice President, 2012-2013

        12. Please list each membership you have had after 18 years of age
    or currently hold with any civic, social, charitable, educational,
    political, professional, fraternal, benevolent or religiously
    affiliated organization, private club, or other membership
    organization. (For this question, you do not have to list your
    religious affiliation or membership in a religious house of worship or
    institution.). Include dates of membership and any positions you have
    held with any organization. Please note whether any such club or
    organization restricts membership on the basis of sex, race, color,
    religion, national origin, age, or disability.

       Kappa Kappa Gamma, 1973 to 1974;

       North Carolina State Bar, 1977 to present;

       White House Military Aides Association, 1983 to present;

       Executive Women in Government, 2012 to present (Vice
            President 2012-2013);

       International Women's Forum, Washington, D.C., 2014 to
            present;

       Women's International Shipping and Trading Association
            (WISTA), 2008 to present;

       Loudoun County Republican Women's Club, December 2012 to
            2013;

       Federalist Society, 2012 to present;

       The Falls Church Anglican, 2010 to present;

       American Bar Association, 2021 to present; and

       European Maritime Law Organization, 2016 to present.

        It is my understanding that the groups above do not restrict
    membership on the basis of sex, race, color, religion, national origin,
    age, or disability. It is also my understanding that Kappa Kappa Gamma
    does not discriminate on the basis of national origin, religion,
    disability, age, gender identity or sexual orientation.
        13. Have you ever been a candidate for and/or held a public office
    (elected, non-elected, or appointed)? If so, indicate whether any
    campaign has any outstanding debt, the amount, and whether you are
    personally liable for that debt. No.
        14. List all memberships and offices held with and services
    rendered to, whether compensated or not, any political party or
    election committee within the past ten years. If you have held a paid
    position or served in a formal or official advisory position (whether
    compensated or not) in a political campaign within the past ten years,
    identify the particulars of the campaign, including the candidate, year
    of the campaign, and your title and responsibilities. None.
        15. Itemize all political contributions to any individual, campaign
    organization, political party, political action committee, or similar
    entity of $200 or more for the past ten years.

       Romney for President (Paul D. Ryan)--$1000;

       Romney Victory, Inc.--$2,500;

       Romney Victory, Inc.--$1,000;

       Romney Victory, Inc.--$500;

       Romney for President--$1,000;

       Romney for President--$1,500;

       Romney for President--$1,000;

       Romney for President--$500;

       McConnell for Senate Committee--$1,000;

       McConnell for Senate Committee--$1,000;

       Ed Gillespie for Senate--$500;

       Cruz for President--$1,000;

       Cruz for President--$1,000;

       Cruz for President--$700;

       National Republican Senatorial Committee--$700;

       Ted Cruz for Senate--$500.00;

       Donald J. Trump for President (WinRed)--$800;

       Donald J. Trump for President (WinRed)--$1,000;

       Donald J. Trump for President (WinRed)--$1,800;

       Donald J. Trump for President (WinRed)--$1,350;

       Republican National Committee--$500.00;

       Donald J. Trump for President (WINRED)--$500;

       Youngkin for Governor--$500; and

       Youngkin for Governor--$500.

        16. List all scholarships, fellowships, honorary degrees, honorary
    society memberships, military medals, and any other special recognition
    for outstanding service or achievements.

       Coast Guard Commendation Medal;

       Coast Guard Achievement Medal;

       Coast Guard Meritorious Public Service Award;

       2016 Outstanding Woman of the Year in International Trade
            from Women in International Trade, Los Angeles; (October 6,
            2016)

       2016 Agricultural Transportation Coalition Award for
            Exemplary Leadership;

       2018 Women's Leadership in Supply Chain Award, USC Marshall
            School of Business, Global Supply Chain Management;

       2018 Supply Chain Dive Regulator of the Year;

       2019 Bi-State Motor Carriers Malcolm McLean Memorial Award;

       2020 Agricultural Transportation Coalition ``Person of the
            Year'' Award;

       2021 Lloyd's List One Hundred People, The Most Influential
            People in Shipping;

       2021 Lloyd's List Top Ten in Regulation; and

       2023 Harbor Trucking Association Champions Award.

        17. List each book, article, column, letter to the editor, Internet
    blog posting, or other publication you have authored, individually or
    with others. Include a link to each publication when possible. If a
    link is not available, provide a digital copy of the publication when
    available.

       ``Slick Work: An Analysis of the Oil Pollution Act of
            1990''; Published in 1992 by the Journal of Energy, Natural
            Resources and Environmental Law; Coauthored with Cynthia M.
            Wilkinson and Lisa Pittman. (See attached document.)

       Fact Finding 26--Vessel Capacity and Equipment Availability
            in the United States Export and Import Liner Trades

         Order of Investigation, March 17, 2010. https://
                www.fmc.gov/wp-content/uploads/2018/09/
                FactfindingOrder26.pdf

         Vessel Capacity and Equipment Availability Report
                Recommends Collaborative Approaches to Develop Supply Chain
                Reliability Solutions, December 8, 2010. https://
                www.fmc.gov/vessel-capacity-and-eguipment-availability-
                report-recommends-collaborative-approaches-to-develop-
                supply-chain-reliability-solutions/

       International Ocean Transportation Supply Chain Engagement

         Order of Investigation on International Ocean
                Transportation Supply Chain Engagement, February 1, 2016.
                https://www.fmc.gov/wp-content/uploads/2018/10/
                OrderSupplyChainEngagement.pdf

         Remarks of Commissioner Dye to the Commission on
                Innovation Teams Initiative Update, November 8, 2017.
                https://www.fmc.gov/remarks-of-commissioner-dye-to-the-
                commission-fmc-innovation-teams-initiative-update/

         ``Dear Colleague Letter'' on Fact Finding
                Investigation and Final Report on Commission's Supply Chain
                Innovation Teams Initiative, December 5, 2017. https://
                www.fmc.gov/wp-content/uploads/2018/08/SCITFinalReport-redu
                ced.pdf

       Fact Finding 28--Conditions and Practices Relating to
            Detention, Demurrage, and Free Time in International Oceanborne
            Commerce

         Order of Investigation. Fact Finding Investigation No.
                28, March 5, 2018. https://www2.fmc.gov/readingroom/docs/
                FF%20No.%2028/ff-28_ord2.pdf/

         White Paper: The Memphis Supply Chain Innovation
                Team--A Single Gray Chassis Pool Fosters Fluid Commerce and
                Improves Supply Chin Velocity. May 22, 2019. https://
                www.fmc.gov/wp-content/uploads/2019/0S/Memphis
                SupplyChainWhitepaper.pdf

         ``Dear Colleague Letter'' on Fact Finding
                Investigation No. 28, August 27, 2019. https://www.fmc.gov/
                wp-content/uploads/2019/09/FF28FinalReport
                Letter.pdf

         Fact Finding Investigation No. 28 Interim Report,
                Conditions and Practices Relating to Detention, Demurrage,
                and Free Time in International Oceanborne Commerce,
                September 4, 2018. https://www2.fmc.gov/readingroom/docs/
                FF%20No.%2028/FF28_int_rpt2.p.9.f./

         Fact Finding Investigation No. 28 Final Report,
                Conditions and Practices Relating to Detention, Demurrage,
                and Free Time in International Oceanborne Commerce December
                3, 2018. https://www2.fmc.gov/readingroom/docs/
                FF%20No.%2028/FF-28_FR.pdf/

       Fact Finding 29:

         Fact Finding No. 29--Order of Investigation, March 31,
                2020. https://www2.fmc.gov/readingroom/docs/FFno29/
                FF29_Order.pdf/

         Fact Finding No. 29--Supplemental Order November 19,
                2020. https://www2.fmc.gov/readingroom/docs/FFno29/
                FF2941102(c)%20Supplemental
                Order.pdf/

         Executive Summary of Fact Finding 29, Presented as
                part of the Record submitted by Commissioner Dye to the
                Subcommittee on Coast Guard and Maritime Transportation,
                June 15, 2021. https://www.fmc.gov/wp-content/up
                loads/2021/06/061021DyeTestimonyExecutiveSummary.pdf

         Fact Finding Investigation No. 29 Interim
                Recommendations, July 28, 2021. https://www2.fmc.gov/
                ReadingRoom/docs/FFno29/FF29%20Interim%20Re
                commendations.pdf/

         Fact Finding Investigation Final Report--Effects of
                Covid-19 Pandemic on the U.S. International Ocean Supply
                Chain: Stakeholder Engagement ad Possible Violations of 46
                U.S.C. 41102(c), May 31, 2002. https://www.fmc.gov/wp-
                content/uploads/2022/06/FactFinding29FinalReport.pdf

        18. List all speeches, panel discussions, and presentations (e.g.,
    PowerPoint) that you have given on topics relevant to the position for
    which you have been nominated. Include a link to each publication when
    possible. If a link is not available, provide a digital copy of the
    speech or presentation when available.
        In the past, I have been asked to give remarks concerning current
    issues related to my position. I speak from notes for the appearances,
    and do not keep copies of my notes or the dates of appearances.
    Following are the speeches for which I have retained prepared remarks:

       September 2007: Comments Before the National Custom Brokers
            and Forwarders Association of America; https://www.fmc.gov/
            comments-of-commissioner-rebecca-dye-at-ncbfaa-government-
            affairs-conference/

       April 2008: Comments Before the National Industrial
            Transportation League; https://www.fmc.gov/comments-of-
            commissioner-rebecca-dye-at-nitl-spring-policy-forum/

       April 2009: Remarks at the Global Liner Shipping Conference;
            https://www.fmc.gov/dye-global-liner-2009/

       April 2009: Comments before the National Custom Brokers and
            Forwarders Association of America, Inc.; https://www.fmc.gov/
            comments-of-u-s-federal-maritime-commissioner-rebecca-dye-at-
            ncbfaa-annual-conference-2/

       October 2009: Comments Before the National Association of
            Waterfront Employers; https://www.fmc.gov/comments-of-federal-
            maritime-commissioner-rebecca-dye-national-association-of-
            waterfront-employers/

       April 2010: Comments before the National Custom Brokers and
            Forwarders Association of America, Inc.; https://www.fmc.gov/
            comments-of-fmc-commissioner-rebecca-f-dye-at-the-2010-ncbfaa-
            annual-conference/

       October 2010: Comments before the Midwest Specialty Grains
            Conference and Trade Show; https://www.fmc.gov/comments-of-
            federal-maritime-commissioner-rebecca-f-dye-at-the-2010-
            midwest-specialty-grains-conference-and-trade-show/

       October 2010: Comments before the American Metal Market
            Scrap and Scrap Substitutes Conference; https://www.fmc.gov/
            comments-of-federal-maritime-commissioner-rebecca-f-dye-
            american-metal-market-scrap-and-scrap-substitutes-conference/

       November 2010: Comments at the Western Cargo Conference
            (WESCCON); https://www.fmc.gov/comments-of-federal-maritime-
            commissioner-rebecca-f-dye-at-the-western-cargo-conference-
            wesccon/

       November 2010: Comments at the Northeast Cargo Symposium;
            https://www.fmc.gov/comments-of-federal-maritime-commissioner-
            rebecca-f-dye-at-the-northeast-cargo-symposium-in-boston/

       December 2011: Comments at the American Metal Market Moving
            Metals Conference; https://www.fmc.gov/comments-of-federal-
            maritime-commissioner-rebecca-f-dye-at-the-american-metal-
            market-moving-metals-conference/

       June 2012: Comments before the Canadian American Business
            Council; https://www.fmc.gov/comments-of-fmc-commissioner-
            rebecca-f-dye-at-the-canadian-american-business-council-the-
            dragon-in-the-room-chinas-impact-on-canada-u-s-issues/

       September 2013: Comments before the National Customs Brokers
            and Freight Forwarders Association of America, Inc. (NCBFAA);
            https://www.fmc.gov/commissioner-rebecca-dyes-comments-
            delivered-at-the-ncbfaa-government-affairs-conference/

       May 2014: Remarks at the European Maritime Law Organisation;
            https://www.fmc.gov/commissioner-dyes-prepared-remarks-to-the-
            european-maritime-law-organization-spring-seminar-in-valletta-
            malta/

       June 2014: Remarks to the Propeller Club of the United
            States; https://www.fmc.gov/commissioner-dyes-prepared-remarks-
            to-the-propeller-club-of-the-united-states-port-of-washington-
            d-c/

       January 2015: Statement to the FMC's Gulf Coast Port Forum;
            https://www.fmc.gov/commissioner-dyes-statement-to-the-port-
            forum-in-new-orleans/

       December 2015: Remarks to the Navy League Northern Virginia
            Council; https://www.fmc.gov/remarks-by-commissioner-rebecca-
            dye-navy-league-northern-virginia-council/

       July 2016: Remarks to the National Maritime Interagency
            Advisory Group Meeting; https://www.fmc.gov/commissioner-dyes-
            prepared-remarks-to-national
            -maritime-interagency-advisory-group-meeting/

       October 2016: Remarks to the General Stevedoring Council;
            https://www.fmc
            .gov/remarks-of-commissioner-rebecca-dye-general-stevedoring-
            council-luncheon/

       December 2016: Remarks at the Journal of Commerce's Port
            Performance North American Conference; https://www.fmc.gov/
            information-infrastructure-is-key-to-american-economic-
            competitiveness/

       January 2017: Remarks at the National Industrial
            Transportation League (NITL) Transportation Summit; https://
            www.fmc.gov/remarks-of-commissioner-rebecca-dye-national-
            industrial-transportation-league-transportation-summit/

       May 2017: Remarks at the Washington Council on International
            Trade; https://www.fmc.gov/remarks-of-commissioner-rebecca-dye-
            washington-council-on-international-trade/

       June 2017: Address at the Agricultural Transportation
            Coalition Annual Meeting; https://www.fmc.gov/commissioner-dye-
            addresses-agricultural-transporta
            tion-coalition-annual-meeting/

       September 2017: Address to the Global Liner Shipping Asia
            Forum; https://www.fmc.gov/commissioner-dye-addresses-global-
            liner-shipping-asia-forum-in-singapore-on-supply-chain-
            visibility-and-us-regulatory-reform/

       September 2017: Remarks at the National Customs Brokers &
            Forwarders Association of America, Inc. (NCBFAA) Government
            Affairs Conference; https://www.fmc.gov/remarks-of-
            commissioner-rebecca-dye-ncbfaa-government-affairs-conference/

       October 2017: Remarks at the American Association of Port
            Authorities (AAPA) Annual Convention; https://www.fmc.gov/
            remarks-of-commissioner-rebecca-dye-aapa-annual-convention/

       October 2017: Panel Remarks at the American Association of
            Port Authorities (AAPA) Annual Convention; https://www.fmc.gov/
            commissioner-dye-participates-on-panel-at-aapa-annual-
            convention-in-long-beach/

       October 2017: Address at the Pacific Northwest Waterways
            Association (PNWA) Annual Meeting; https://www.fmc.gov/
            commissioner-dye-addresses-pnwa-annual-meeting/

       January 2018: Statement on Hearings on the Petition for Fair
            Port Practices; https://www.fmc.gov/statement-of-commissioner-
            rebecca-dye-hearings-on-the-petition-of-the-coalition-for-fair-
            port-practices/

       March 2018: Remarks at the 18th TPM Annual Conference;
            https://www.fmc.gov/remarks-of-commissioner-dye-to-the-18th-
            tpm-annual-conference/

       April 2018: Comments at the Global Liner Shipping
            Conference; https://www.fmc.gov/comments-of-u-s-federal-
            maritime-commissioner-rebecca-dye-at-global-liner-shipping-
            conference/

       April 2018: Comments at the National Customs Brokers &
            Forwarders Association of America, Inc. (NCBFAA) Annual
            Conference; https://www.fmc.gov/comments-of-u-s-federal-
            maritime-commissioner-rebecca-dye-at-ncbfaa-annual-conference/

       April 2018: Remarks at U.S.-China Bilateral Maritime
            Consultations; https://www.fmc.gov/commissioner-dye-represents-
            fmc-at-us-china-bilateral-maritime-consultations/

       May 2018: Address at the National Customs Brokers &
            Forwarders Association of America, Inc. (NCBFAA) Annual
            Conference; https://www.fmc.gov/commissioner-dye-addresses-
            ncbfaa-annual-conference/

       May 2018: Keynote Address to the Global Shippers Forum
            Annual Conference; https://www.fmc.gov/commissioner-dyes-
            keynote-address-to-the-global-shippers-forum-annual-conference/

       June 2018: Address at the Transportation Research Board's
            (TRB) Maritime Research & Development Conference; https://
            www.fmc.gov/commissioner-dye-addressed-the-trbs-maritime-
            research-development-conference/

       July 2018: Remarks at the Maritime Administrative Bar
            Association (MABA); https://www.fmc.gov/remarks-of-
            commissioner-rebecca-dye-at-the-maba-luncheon/

       September 2018: Remarks to the National Retail Federation's
            (NRF) Strategic Supply Chain Council & Trade Advisory
            Committee; https://www.fmc.gov/commissioner-dye-meets-with-
            nrfs-strategic-supply-chain-council-trade-advisory-committee/

       September 2018: Remarks at the Port of New York and New
            Jersey's 18th Annual Port Industry Day; https://www.fmc.gov/
            commissioner-dyes-remarks-at-the-port-of-new-york-new-jerseys-
            18th-annual-port-industry-day/

       September 2018: Remarks at the National Customs Brokers &
            Forwarders Association of America, Inc. (NCBFAA) Conference;
            https://www.fmc.gov/commissioner-dye-discusses-carrier-service-
            contract-filing-exemption-fact-finding-28-at-ncbfaa-conference/

       October 2018: Remarks at Vessel Ceremony at the Port of
            Baltimore; https://www.fmc.gov/commissioner-dye-christens-ship-
            operating-in-the-us-europe-trade/

       October 2018: Remarks at the International Bar Association,
            Annual Conference; https://www.fmc.gov/remarks-of-commissioner-
            dye-international-bar-association-annual-conference-2018/

       October 2018, Remarks to the European Maritime Law
            Organisation, 24th Annual Conference; https://www.fmc.gov/
            remarks-of-commissioner-dye-european-maritime-law-organization-
            24th-annual-conference/

       October 2018: Remarks at the Association of Transportation
            Law Professionals (ATLP); https://www.fmc.gov/remarks-of-
            commissioner-dye-association-of-transportation-law-
            professionals-transportation-forum-xv/

       December 2018: Remarks at Journal of Commerce Port
            Performance North America; https://www.fmc.gov/remarks-of-
            commissioner-dye-joc-port-performance-north-america/

       March 2019, Remarks to Women's Traffic and Tourism Club
            Dinner; https://www.fmc.gov/remarks-of-fmc-commissioner-
            rebecca-dye-womens-traffic-and-tourism-club-dinner-baltimore-
            maryland/

       March 2019, Remarks of Commissioner Rebecca Dye American
            Association of Port Authorities; https://www.fmc.gov/remarks-
            of-commissioner-rebecca-dye-american-association-of-port-
            authorities/

       April 2019, Remarks to National Customs Brokers & Forwarders
            Association of America, Inc. (NCBFFA) Annual Conference;
            https://www.fmc.gov/remarks-of-commissioner-rebecca-dye-ncbffa-
            annual-conference-san-antonio-texas/

       May 2019, Remarks to American Trucking Association
            Conference; https://www.fmc.gov/dye-american-trucking-
            association/

       May 2019, Remarks to Dye American Cotton Shippers
            Association; https://www.fmc.gov/dye-american-cotton-shippers-
            association/

       May 2019, Statement Before the U.S. Surface Transportation
            Board Oversight Hearing on Demurrage and Accessorial Charges;
            https://www.fmc.gov/statement-of-dye-stb-demurrage/

       June 2019, Remarks at the National Customs Brokers &
            Forwarders Association of America, Inc. (NCBFAA) Conference;
            https://www.fmc.gov/fmc-commissioner-rebecca-dye-remarks-at-
            the-ncbfaa-conference/

       September 2019, Remarks to Retail Industry Leaders
            Association's (RILA) Transportation Executives; https://
            www.fmc.gov/dye-addresses-rila-transportation-executives/

       September 2019, Malcom McLean Award Acceptance Remarks;
            https://www.fmc.gov/dye-malcolm-mclean-award-acceptance-
            remarks/

       September 2020: Remarks at National Customs Brokers &
            Forwarders Association of America, Inc. (NCBFAA) Panel: A
            Conversation with FMC; https://www.fmc.gov/three-commissioners-
            participate-in-ncbfaa-panel-a-conversation-with-fmc/

       October 2021, Remarks to the 2021 South Carolina
            International Trade Conference; https://www.fmc.gov/remarks-of-
            commissioner-rebecca-dye-2021-south-carolina-international-
            trade-conference/ and

       October 2022, Remarks at Western Cargo Conference (WESCCON);
            https://www.fmc.gov/remarks-of-commissioner-rebecca-dye-at-
            wesccon-in-san-diego/.

        19. List all public statements you have made during the past ten
    years, including statements in news articles and radio and television
    appearances, which are on topics relevant to the position for which you
    have been nominated, including dates. Include a link to each statement
    when possible. If a link is not available, provide a digital copy of
    the statement when available.

       Commissioner Dye Releases Final Report for Fact Finding No.
            29, May 31, 2022; https://www.fmc.gov/commissioner-dye-
            releases-final-report-for-fact-finding-no-29/

       FMC Receives Fact Finding No. 29 Final Recommendations &
            Intermodal Equipment Report, May 19, 2022; https://www.fmc.gov/
            fmc-receives-fact-finding-29-final-recommendations-intermodal-
            equipment-report/

       FMC Launches Instructional Video on How to File Complaints,
            April 25, 2022; https://www.fmc.gov/fmc-launches-instructional-
            video-on-how-to-file-complaints/

       Testimony of Commissioner Dye before Congress: ``Executive
            Session and Ocean Shipping Reform Act Hearing,'' March 3, 2022;
            https://www.fmc.gov/testimony-of-commissioner-dye-before-
            congress-executive-session-and-ocean-shipping-reform-act-
            hearing/

       Commissioner Dye Explains Options for Filing Complaints at
            FMC, Febru-
            ary 15, 2022; https://www.fmc.gov/commissioner-dye-explains-
            options-for-filing-complaints-at-fmc/

       Commission Invites Comments on Benefits of New Demurrage &
            Detention Rule, February 4, 2022; https://www.fmc.gov/
            commission-invites-comments-on-benefits-of-new-demurrage-
            detention-rule/

       New Supply Chain Initiatives Announced at FMC Meeting,
            November 17, 2021; https://www.fmc.gov/new-supply-chain-
            initiatives-announced-at-fmc-meeting/

       Remarks of Commissioner Rebecca Dye on Fact Finding No. 29
            Interim Recommendations, July 28, 2021; https://www.fmc.gov/
            remarks-of-commissioner-rebecca-dye-on-fact-finding-29-interim-
            recommendations/

       FMC Hears Proposals Addressing Supply Chain and Cruise
            Issues, July 28, 2021; https://www.fmc.gov/fmc-hears-proposals-
            addressing-supply-chain-and-cruise-issues/

       Testimony of Commissioner Dye before Congress: ``Impacts of
            Shipping Container Shortages, Delays, and Increased Demand on
            the North American Supply Chain'' with Executive Summary of
            Fact Finding No. 29, June 15, 2021; https://www.fmc.gov/
            testimony-of-commissioner-dye-before-congress-impacts-of-
            shipping-container-shortages-delays-and-increased-demand-on-
            the-north-american-supply-chain/

       Statement of Commissioner Rebecca F. Dye Applauding the
            Creation of the FMC National Shipper Advisory Committee, May
            19, 2021; https://www
            .fmc.gov/statement-of-commissioner-rebecca-f-dye-applauding-
            the-creation-of-the-fmc-national-shipper-advisory-committee/

       Information Demand on Detention & Demurrage Practices to be
            Issued, February 17, 2021; https://www.fmc.gov/information-
            demand-on-detention-demurrage-practices-to-be-issued/

       Fact Finding No. 29: Advice to the Trade, December 17, 2020;
            https://www.fmc.gov/fact-finding-29-advice-to-the-trade/

       FMC Receives Briefings at December Meeting, December 10,
            2020; https://www.fmc.gov/fmc-receives-briefings-at-december-
            meeting/

       Commission Approves Supplemental Order Expanding Fact
            Finding 29 Authority, November 20, 2020; https://www.fmc.gov/
            commission-approves-supplemental-order-expanding-fact-finding-
            29-authority/

       Commission Extends Temporary Exemption of Certain Service
            Contract Filing Requirements, October 1, 2020; https://
            www.fmc.gov/commission-extends-temporary-exemption-of-certain-
            service-contract-filing-requirements/

       Three Commissioners Participate in NCBFAA Panel: A
            Conversation with the FMC, September 29, 2020; https://
            www.fmc.gov/three-commissioners-participate-in-ncbfaa-panel-a-
            conversation-with-fmc/

       Commissioner Dye Completes Work in NY & NJ, Turns Attention
            to New Orleans, August 4, 2020; https://www.fmc.gov/
            commissioner-dye-completes-work-in-ny-nj-turns-attention-to-
            new-orleans/

       Dye Covid-19 Supply Chain Investigation Shifts Focus to NY/
            NJ in Phase Two, July 16, 2020; https://www.fmc.gov/dye-covid-
            19-supply-chain-investigation-shifts-focus-to-ny-nj-in-phase-
            two/

       Commissioner Dye Announces Findings of San Pedro Bay
            Discussions, June 17, 2020; https://www.fmc.gov/commissioner-
            dye-announces-findings-of-san-pedro-bay-discussions/

       Shipper Group Recognizes Commissioner Dye for Her Leadership
            on Supply Chain Issues, May 29, 2020; https://www.fmc.gov/
            shipper-group-recognizes-commissioner-dye-for-her-leadership-
            on-supply-chain-issues/

       act Finding No. 29 Innovation Teams Identify Information
            Helpful to Mitigating Covid-19 Impacts on Supply Chain, May 14,
            2020; https://www.fmc.gov/fact-finding-29-teams-covid-19-
            impacts-supply-chain/

       Commission Issues New Guidance on Detention & Demurrage,
            April 28, 2020; https://www.fmc.gov/new-guidance-detention-
            demurrage/

       Commission Provides Temporary Relief from Certain Service
            Contract Filing Requirements, April 27, 2020; https://
            www.fmc.gov/commission-provides-temporary-relief-service-
            contract-filing/

       Fact Finding No. 29 Supply Chain Innovation Teams to Begin
            Work, April 6, 2020; https://www.fmc.gov/fact-finding-29-teams-
            to-begin-work/

       Commissioner Dye Leading FMC Initiative to Address Urgent
            COVID-19 Supply Chain Impacts, March 31, 2020; https://
            www.fmc.gov/dye-leading-fmc-initiative-address-urgent-covid-19-
            supply-chain-impacts/

       Malcom McLean Award Presented to Commissioner Dye, September
            13, 2019; https://www.fmc.gov/malcom-mclean-award-presented-to-
            commissioner-dye/

       Commissioner Rebecca Dye's Malcom McLean Award Acceptance
            Remarks, September 9, 2019; https://www.fmc.gov/dye-malcolm-
            mclean-award-acceptance-remarks/

       Proposed Interpretive Rule on Demurrage and Detention
            Issued, September 13, 2019; https://www.fmc.gov/proposed-
            interpretive-rule-on-demurrage-and-detention-issued/

       Commission Approves Dye's Final Recommendations on Detention
            and Demurrage, September 6, 2019; https://www.fmc.gov/
            commission-approves-dyes-final-recommendations-on-detention-
            and-demurrage/

       Commissioner Dye Addresses RILA Transportation Executives,
            September 5, 2019; https://www.fmc.gov/dye-addresses-rila-
            transportation-executives/

       Commissioner Dye Represents the Federal Maritime Commission
            at the U.S.-Japan Maritime Bilateral Meeting in Washington, DC,
            September 5, 2019; https://www.fmc.gov/dye-maritime-bilateral-
            dc/

       Dye to Begin Last Phase of Detention & Demurrage
            Investigation, March 1, 2019; https://www.fmc.gov/dye-to-begin-
            last-phase-of-detention-demurrage-inves
            tigation/

       Acting Chairman Khouri & Commissioner Dye Address
            Transportation Legal Professionals, November 5, 2018; https://
            www.fmc.gov/acting-chairman-khouri-commissioner-dye-address-
            transportation-legal-professionals/

       Commissioner Dye Christens Ship Operating in the U.S.-Europe
            Trade, October 3, 2018; https://www.fmc.gov/commissioner-dye-
            christens-ship-operating-in-the-us-europe-trade/

       Port of New York & New Jersey Added to Detention & Demurrage
            Field Interview Itinerary, October 3, 2018; https://
            www.fmc.gov/port-of-new-york-new-jersey-added-to-detention-
            demurrage-field-interview-itinerary/

       Detention & Demurrage Filed Interview Locations Announced,
            September 28, 2018; https://www.fmc.gov/detention-demurrage-
            field-interview-locations-anno
            unced/

       Commissioner Dye Discusses Carrier Service Contract Filing
            Exemption and Fact Finding 28 at NCBFAA Conference, September
            28, 2018; https://www.fmc.gov/commissioner-dye-discusses-
            carrier-service-contract-filing-exemption-fact-finding-28-at-
            ncbfaa-conference/

       Commissioner Dye's Remarks at the Port of New York & New
            Jersey's 18th Annual Port Industry Day, September 24, 2018;
            https://www.fmc.gov/commissioner-dyes-remarks-at-the-port-of-
            new-york-new-jerseys-18th-annual-port-industry-day/

       Commission Reviews Work on Fact Finding 28 & Regulatory
            Reform Initiative, September 19, 2018; https://www.fmc.gov/
            commission-reviews-work-on-fact-finding-28-regulatory-reform-
            initiative/

       Commissioner Dye Meets with NRF's Strategic Supply Chain
            Council & Trade Advisory Committee, September 5, 2018; https://
            www.fmc.gov/commissioner-dye-meets-with-nrfs-strategic-supply-
            chain-council-trade-advisory-committee/

       Commissioner Dye Represents FMC at U.S.-China Bilateral
            Maritime Consultations, April 25, 2018; https://www.fmc.gov/
            commissioner-dye-represents-fmc-at-us-china-bilateral-maritime-
            consultations/

       FMC Issues Information Demands in Detention & Demurrage
            Investigation, April 2, 2018; https://www.fmc.gov/fmc-issues-
            information-demands-in-detention-demurrage-investigation/

       Commission Orders Formal Investigation in Detention &
            Demurrage Case, March 5, 2018; https://www.fmc.gov/commission-
            orders-formal-investigation-in-detention-demurrage-case/

       Statement of Commissioner Rebecca Dye at Hearings on the
            Petition of the Coalition for Fair Port Practices, January 16,
            2018; https://www.fmc.gov/statement-of-commissioner-rebecca-
            dye-hearings-on-the-petition-of-the-coalition-for-fair-port-
            practices/

       Supply Chain Innovation Teams Report Published, December 7,
            2017; https://www.fmc.gov/supply-chain-innovation-teams-report-
            published/

       Commissioner Dye Addresses Pacific Northwest Waterways
            Association's (PNWA) Annual Meeting, October 18, 2017; https://
            www.fmc.gov/commissioner-dye-addresses-pnwa-annual-meeting/

       Commissioner Dye Participates on Panel at AAPA Annual
            Convention, October 3, 2017; https://www.fmc.gov/commissioner-
            dye-participates-on-panel-at-aapa-annual-convention-in-long-
            beach/

       Commissioner Dye Addresses Global Liner Shipping Asia Forum
            in Singapore on Supply Chain Visibility and U.S. Regulatory
            Reform, September 5, 2017; https://www.fmc.gov/commissioner-
            dye-addresses-global-liner-shipping-asia-forum-in-singapore-on-
            supply-chain-visibility-and-us-regulatory-reform/

       FMC Launches Export Phase of Supply Chain System Information
            Initiative, July 11, 2017; https://www.fmc.gov/fmc-launches-
            export-phase-of-supply-chain-system-information-initiative/

       Commissioner Dye Addresses Agricultural Transportation
            Coalition Annual Meeting, June 8, 2017; https://www.fmc.gov/
            commissioner-dye-addresses-agricultural-transportation-
            coalition-annual-meeting/

       U.S. Senate Subcommittee Hearing on Maritime Transportation,
            May 9, 2017; https://www.fmc.gov/senate-subcommittee-hearing-
            on-maritime-transportation/

       Commissioner Dye Testifies to Congress Regarding Maritime
            Transportation: Opportunities and Challenges for the Maritime
            Administration and Federal Maritime Commission, May 9, 2017;
            https://www.fmc.gov/commissioner-rebecca-dye-testifies-to-
            congress-regarding-maritime-transportation-opportunities-and-
            challenges-for-the-maritime-administration-and-federal-
            maritime-commis
            sion/

       Information Infrastructure is Key to American Economic
            Competitiveness, December 6, 2016; https://www.fmc.gov/
            information-infrastructure-is-key-to-american-economic-
            competitiveness/

       Statements on Passing of Former FMC Chairman Helen Bentley,
            August 8, 2016; https://www.fmc.gov/statements-on-passing-of-
            former-fmc-chairman-helen
            -bentley/

       FMC Votes on Rulemakings, Provides Briefings on Global
            Shipping Issues, July 21, 2016; https://www.fmc.gov/fmc-votes-
            on-rulemakings-provides-briefings-on-global-shipping-issues/

       Senate Confirms Three to Serve on Federal Maritime
            Commission, June 30, 2016; https://www.fmc.gov/senate-confirms-
            three-to-serve-on-federal-maritime-commission/

       FMC's Supply Chain Innovation Teams Launched Today, May 3,
            2016. https://www.fmc.gov/fmcs-supply-chain-innovation-teams-
            launched-today/

       FMC Briefed on Supply Chain Innovation Team Launch and Seeks
            Comment on Two Rulemakings, April 20, 2016; https://
            www.fmc.gov/fmc-briefed-on-supply-chain-innovation-team-launch-
            and-seeks-comment-on-two-rulemakings/

       Commissioner Dye Updates FMC on Supply Chain Initiative,
            April 20, 2016; https://www.fmc.gov/commissioner-dye-updates-
            fmc-on-supply-chain-innovation-initiative/

       Supply Chain Innovation Team Launch Scheduled, March 24,
            2016; https://www.fmc.gov/supply-chain-innovation-team-launch-
            scheduled/

       Chairman Cordero Announces Commissioner Dye to Lead Supply
            Chain Innovation Project, February 1, 2016. https://
            www.fmc.gov/chairman-cordero-announces-commissioner-dye-to-
            lead-supply-chain-innovation-project/

       Commissioner Dye Votes Against Final Rule Concerning OTIs,
            October 22, 2015; https://www.fmc.gov/commissioner-dye-votes-
            against-final-rules-concern
            ing-otis/

       Public Forum-Gulf Coast Ports, October 27, 2014; https://
            www.fmc.gov/public-forum-gulf-coast-ports/

       Statement of Commissioner Rebecca Dye on Docket 13-05
            Regulations Governing Ocean Transportation Intermediaries,
            September 26, 2014; https://www.fmc.gov/statement-of-
            commissioner-rebecca-dye-on-docket-13-05-regulations-governing-
            ocean-transportation-intermediary-licensing/

       Statement of Commissioner Rebecca Dye on Revised Timetable
            for Retrospective review of Existing Rules to Include Service
            Contract Rules, February 13, 2013; https://www.fmc.gov/
            statement-of-commissioner-rebecca-dye-revised-timetable-for-
            retrospective-review-of-existing-rules-to-include-service-
            contract-rules/

       Statement of Commissioner Rebecca Dye: Passenger Vessel
            Financial Responsibility Requirements, February 13, 2013;
            https://www.fmc.gov/statement-of-commissioner-rebecca-dye-
            passenger-vessel-financial-responsibility-requirements/

       Statement of Commissioner Rebecca Dye: Ocean Transportation
            Intermediary Advanced Notice of Proposed Rulemaking, December
            19, 2012. https://www.fmc.gov/statement-of-commissioner-
            rebecca-dye-ocean-transportation-intermediary-advanced-notice-
            of-proposed-rulemaking-2/

       Statement of Commissioner Rebecca Dye on Study of U.S.
            Inland Containerized Cargo Moving Through Canadian and Mexican
            Seaports, July 27, 2012; https://www.fmc.gov/statement-of-fmc-
            commissioner-dye-on-study-of-u-s-inland-containerized-cargo-
            moving-through-canadian-and-mexican-seaports/

       Comments of FMC Commissioner Rebecca F. Dye at the Canadian
            American Business Council, The Dragon in the Room: China's
            Impact on Canada/U.S. Issues, June 7, 2012; https://
            www.fmc.gov/comments-of-fmc-commissioner-rebecca-f-dye-at-the-
            canadian-american-business-council-the-dragon-in-the-room-
            chinas-impact-on-canada-u-s-issues/

       Statement of Commissioner Rebecca Dye on Review of NVOCC
            Negotiated Rate Arrangements April 18, 2012, April 24, 2012;
            https://www.fmc.gov/statement-of-commissioner-rebecca-dye-on-
            review-of-nvocc-negotiated-rate-arrangements-april-18-2012/

       Comments of Federal Maritime Commissioner Rebecca F. Dye at
            the American Metal Market Moving Metals Conference, December 9,
            2011; https://www
            .fmc.gov/comments-of-federal-maritime-commissioner-rebecca-f-
            dye-at-the-american-metal-market-moving-metals-conference/

       Statement of Commissioner Rebecca Dye regarding Revisions to
            the Commission's Passenger Vessel Regulations on September 8,
            2011, September 14, 2011; https://www.fmc.gov/statement-of-
            commissioner-rebecca-dye-regarding-revisions-to-the-
            commissions-passenger-vessel-regulations-on-september-8-2011/

       Senate Confirms Rebecca F. Dye and Mario Cordero as FMC
            Commissioners, April 15, 2011; https://www.fmc.gov/senate-
            confirms-rebecca-f-dye-and-mario-cordero-as-fmc-commissioners/

        Prior to 2011, the Commission's Press Releases were limited in
    scope and Commissioner Statements and Remarks were not posted with the
    same regularity or frequency as in recent years.
        20. List all digital platforms (including social media and other
    digital content sites) on which you currently or have formerly operated
    an account, regardless of whether or not the account was held in your
    name or an alias. Include the full name of an ``alias'' or ``handle'',
    including the complete URL and username with hyperlinks, you have used
    on each of the named platforms. Indicate whether the account is active,
    deleted, or dormant. Include a link to each account if possible.
        None.
        21. Please identify each instance in which you have testified
    orally or in writing before Congress in a governmental or non-
    governmental capacity and specify the date and subject matter of each
    testimony.

       Committee on Commerce, Science, and Transportation, U.S.
            Senate, four appearances:

         July 31, 2002, Nomination Hearing;

         November 30, 2010, Nomination Hearing; https://
                www.fmc.gov/statement-of-commissioner-rebecca-f-dye-before-
                the-senate-committee-on-commerce-science-and-
                transportation/

         May 9, 2017, Opportunities and Challenges for the
                Maritime for Administration and the Federal Maritime
                Commission https://www.fmc.gov/commissioner-rebecca-dye-
                testifies-to-congress-regarding-maritime-transportation-
                opportunities-and-challenges-for-the-maritime-
                administration-and-federal-maritime-commission/; and

         March 3, 2022, Ocean Shipping Reform Act. https://
                www.fmc.gov/testimony-of-commissioner-dye-before-congress-
                executive-session-and-ocean-shipping-reform-act-hearing/

       Subcommittee on Coast Guard and Maritime Transportation,
            Committee on Transportation and Infrastructure, U.S. House of
            Representatives, six appearances:

         April 15, 2008, Fiscal Year 2009 Federal Maritime
                Commission Budget Request;

         June 19, 2008, Management of the Federal Maritime
                Commission;

         May 13, 2009, Fiscal Year 2010 Federal Maritime
                Commission Budget Request;

         March 17, 2010, Capacity of Vessels to Meet U.S.
                Import and Export Requirements; https://www.fmc.gov/
                chairman-lidinsky-testifies-to-congress-regarding-vessel-
                capacity-issues-and-fmc-fact-finding-investigation/

         June 30, 2010, Update on Federal Maritime Commission's
                Examination of Vessel Capacity; https://www.fmc.gov/
                commissioner-dye-testifies-to-congress-regarding-ocean-
                vessel-capacity-shipping-container-availability-and-fact-
                finding-investigation-number-26/; and

         June 15, 2021, Impacts of Shipping Container
                Shortages, Delays, and Increased Demand on the North
                American Supply Chain. https://www.fmc.gov/testimony-of-
                commissioner-dye-before-congress-impacts-of-shipping-
                container-shortages-delays-and-increased-demand-on-the-
                north-american-supply-chain/

        22. Given the current mission, major programs, and major
    operational objectives of the department/agency to which you have been
    nominated, what in your background or employment experience do you
    believe affirmatively qualifies you for appointment to the position for
    which you have been nominated, and why do you wish to serve in that
    position?
        I believe my over 40 years of knowledge in matters concerning
    maritime law and policy, including my experience as a Federal Maritime
    Commissioner, qualifies me for this position. If confirmed, I believe
    that my in-depth expertise and other qualifications will allow me to
    successfully discharge the responsibilities of the position for which I
    have been nominated. I believe it is an honor to serve the people of
    the United States in the position for which I have been nominated.
        23. What do you believe are your responsibilities, if confirmed, to
    ensure that the department/agency has proper management and accounting
    controls, and what experience do you have in managing a large
    organization?
        If confirmed, I will continue to cooperate with the Chairman of the
    Federal Maritime Commission to ensure that the Commission has proper
    management and accounting controls. In the absence of a Federal
    Maritime Commission Chairman from November 2006 to June 2009, I
    performed the management duties of Chairman for the agency in
    cooperation with my fellow commissioners and am familiar with all
    management and accounting requirements of the agency.
        24. What do you believe to be the top three challenges facing the
    department/agency, and why?
        As a small agency, the Federal Maritime Commission is challenged to
    enforce the law strategically in order to use limited resources wisely.
    As an independent agency, the Federal Maritime Commission is challenged
    to enforce the law independently after considering all relevant
    viewpoints and other legal mandates of the Commission. Finally, the
    Commission is challenged today to enforce the law and other
    requirements of the agency, including working to improve the U.S.
    international ocean shipping freight delivery system, in accordance
    with the purposes of our organic statute, the Shipping Act of 1984, as
    amended by the Ocean Shipping Reform Act of 1998, and the Ocean
    Shipping Reform Act of 2022.
                       b. potential conflicts of interest
        1. Describe all financial arrangements, deferred compensation
    agreements, and other continuing dealings with business associates,
    clients, or customers. Please include information related to retirement
    accounts, such as a 401(k) or pension plan. None.
        2. Do you have any commitments or agreements, formal or informal,
    to maintain employment, affiliation, or practice with any business,
    association, or other organization during your appointment? If so,
    please explain. None.
        3. Indicate any investments, obligations, liabilities, or other
    relationships which could involve potential conflicts of interest in
    the position to which you have been nominated. Explain how you will
    resolve each potential conflict of interest. None.
        4. Describe any business relationship, dealing, or financial
    transaction which you have had during the last ten years, whether for
    yourself, on behalf of a client, or acting as an agent, that could in
    any way constitute or result in a possible conflict of interest in the
    position to which you have been nominated. Explain how you will resolve
    each potential conflict of interest. None.
        5. Identify any other potential conflicts of interest, and explain
    how you will resolve each potential conflict of interest.
        I am unaware of any potential conflicts of interest at this time.
    If any potential conflicts arise, I will recuse myself from
    consideration of the matters involved.
        6. Describe any activity during the past ten years, including the
    names of clients represented, in which you have been engaged for the
    purpose of directly or indirectly influencing the passage, defeat, or
    modification of any legislation or affecting the administration and
    execution of law or public policy. None.
                                c. legal matters
        1. Have you ever been disciplined or cited for a breach of ethics,
    professional misconduct, or retaliation by, or been the subject of a
    complaint to, any court, administrative agency, the Office of Special
    Counsel, an Inspector General, professional association, disciplinary
    committee, or other professional group?
        If yes:

      a.  Provide the name of court, agency, association, committee, or
            group;

      b.  Provide the date the citation, disciplinary action, complaint, or
            personnel action was issued or initiated;

      c.  Describe the citation, disciplinary action, complaint, or
            personnel action;

      d.  Provide the results of the citation, disciplinary action,
            complaint, or personnel action.
        No.

        2. Have you ever been investigated, arrested, charged, or held by
    any Federal, State, or other law enforcement authority of any Federal,
    State, county, or municipal entity, other than for a minor traffic
    offense? If so, please explain. No.
        3. Have you or any business or nonprofit of which you are or were
    an officer ever been involved as a party in an administrative agency
    proceeding, criminal proceeding, or civil litigation? If so, please
    explain.
        I was the Plaintiff in a civil divorce proceeding for which a Final
    Divorce Decree was issued on August 27, 2008.
        4. Have you ever been convicted (including pleas of guilty or nolo
    contendere) of any criminal violation other than a minor traffic
    offense? If so, please explain. No.
        5. Have you ever been accused, formally or informally, of sexual
    harassment or discrimination on the basis of sex, race, religion, or
    any other basis? If so, please explain. No.
        6. Please advise the Committee of any additional information,
    favorable or unfavorable, which you feel should be disclosed in
    connection with your nomination. None.
                         d. relationship with committee
        1. Will you ensure that your department/agency complies with
    deadlines for information set by congressional committees, and that
    your department/agency endeavors to timely comply with requests for
    information from individual Members of Congress, including requests
    from members in the minority? Yes.
        2. Will you ensure that your department/agency does whatever it can
    to protect congressional witnesses and whistleblowers from reprisal for
    their testimony and disclosures? Yes.
        3. Will you cooperate in providing the Committee with requested
    witnesses, including technical experts and career employees, with
    firsthand knowledge of matters of interest to the Committee? Yes.
        4. Are you willing to appear and testify before any duly
    constituted committee of the Congress on such occasions as you may be
    reasonably requested to do so? Yes.
                                     ______

                            Resume of Rebecca F. Dye
    PROFESSIONAL BACKGROUND
    Federal Maritime Commission, Washington, DC
    Commissioner
    December 2002-Present
    Nominated by President George W. Bush and renominated and confirmed by
    the United States Senate for successive terms to the Federal Maritime
    Commission.

    Oversee international system of ocean transportation of over $4
    trillion annually in containerized import and export cargo.

    Enforce the Shipping Act competition regime among container vessel
    operators, U.S. seaports, and marine tem1inals.

    Developed and execute successful commercial supply chain innovation
    initiative to increase U.S. international freight delivery system
    performance; involve ocean carriers, U.S. importers and exporters,
    seaports and marine terminal operators, truckers, shipping
    intermediaries, and railroads.

       Prioritize regulatory deregulation to benefit the U.S.
            economy.

       Champion free market solutions for transportation
            inefficiency.

       Conduct groundbreaking investigations with shipping reforms
            for American exporters, importers, truckers, and shipping
            intermediaries.

    Transportation and Infrastructure Committee, U.S. House of
    Representatives
    Subcommittee Counsel and Staff Director
    January 1995-December 2002
    Supervised development and execution of over $7 billion in annual
    Federal budget authority for maritime transportation programs.

    Supervised Subcommittee staff performance in all matters related to
    Subcommittee Jurisdiction.

    Advanced the policies of members of Congress on all matters related to
    maritime transportation. Exercised oversight over ocean transportation,
    marine environmental pollution, maritime and waterways safety, law
    enforcement, International Maritime Organization agreements, and other
    matters related to maritime transportation of passengers, goods, and
    commodities.

    Developed and negotiated enactment of major maritime legislation,
    including the Ocean Shipping Reform Act of 1998, which successfully
    deregulated international ocean shipping, and the Maritime
    Transportation Security Act of 2002, which established a port and
    vessel security regime following the attacks of September 11, 2001.

    Merchant Marine and Fisheries Committee, U.S. House of Representatives
    Minority Counsel
    February 1987-January 1995
    Supervised development and execution of over $5 billion in annual
    Federal budget authority for maritime transportation programs. Advanced
    the policies of members of Congress on all matters related to maritime
    transportation. Exercised leadership role in enactment of Oil Pollution
    Act of 1990, following the Exxon Valdez oil spill in Prince William
    Sound, Alaska.

    Office of the Chief Counsel, Maritime Administration, Washington, DC
    Legislative Attorney
    June 1985-February 1987
    Developed and coordinated clearance of Maritime Administration
    legislation, policy positions, and Congressional testimony. Provided
    legal and policy advice, including on matters related to Federal ship
    financing and cargo preference.

    United States Coast Guard Academy, New London, CT
    Commissioned Officer, Law Instructor
    August 1983-June 1985
    Instructed Coast Guard cadets on a variety of legal topics, including
    the legislative process, military law and procedure, tort liability,
    and selected administrative, law enforcement, and international law
    topics.

    Office of the General Counsel, United States Department of
    Transportation,
    Washington, DC
    Commissioned Officer, Legislative Attorney
    June-August 1983
    Developed and coordinated clearance of Department of Transportation
    maritime legislation, policy positions, and Congressional testimony.
    Provided legal and policy advice concerning Carriage of Goods at Sea
    and other transportation matters.

    Office of the Chief Counsel, United States Coast Guard Headquarters,
    Washington, DC
    Commissioned Officer, Legislative Attorney
    August 1979-June 1983
    Developed and coordinated clearance of Coast Guard legislation, policy
    positions, and Congressional testimony. Provided legal and policy
    advice concerning Coast Guard authority over vessel and waterways
    safety and Federal user fee financing. Certified as Trial and Defense
    Counsel in General and Special Courts-Martial. Served as Chief Coast
    Guard White House Military Social Aide.
    EDUCATION
    University of North Carolina at Chapel Hill, Bachelor of Arts Degree
    University of North Carolina School of Law, Juris Doctorate Degree
    BAR MEMBERSHIP
    Admitted to North Carolina State Bar
                                     ______

                                  Slick Work:
                  An Analysis of the Oil Pollution Act of 1990
                        Cynthia M. Wilkinson*
    ---------------------------------------------------------------------------
        \*\ Majority Counsel, Merchant Marine and Fisheries Committee, U.S.
    House of Representatives, Washington, D.C. The views expressed by the
    authors do not necessarily reflect those of the members of the Merchant
    Marine and Fisheries Committee or the United States House of
    Representatives.
    ---------------------------------------------------------------------------
                            L. Pittman**
    ---------------------------------------------------------------------------
        \**\ Minority Counsel, Merchant Marine and Fisheries Committee,
    U.S. House of Representatives, Washington, D.C.
    ---------------------------------------------------------------------------
                          Rebecca F. Dye***
    ---------------------------------------------------------------------------
        \***\ Minority Counsel, Merchant Marine and Fisheries Committee,
    U.S. House of Representatives, Washington, D.C.
    ---------------------------------------------------------------------------
    I. Introduction

    II. The Law Before the Oil Pollution Act of 1990

    III. The Oil Pollution Act of 1990

        A. Preparedness and Prevention of Oil Spills
            1. Federal Removal Authority and Contingency Plans
            2. Double Hulls

        B. Liability Regime
            1. In General
            2. Removal Costs and Damages Compensable Under the OPA
            3. Defenses to Liability
            4. Federal Oil Spill Liability Trust Fund
            5. How Clean is Clean?
            6. Claims
            7. Limits of Liability
            8. Financial Responsibility
            9. Penalties
            10. Natural Resource Damages
            11. Jurisdiction and Venue
            12. Preemption of State Laws

    IV. 1984 Oil Spill Protocols

        A. Background

        B. Explanation of 1984 Oil Spill Protocols
            1. Protocol to the Civil Liability Convention
            2. Protocol to the Fund Convention

        C. Conference Debate on the 1984 Oil Spill Protocols

        D. Final Conference Action

        E. Outlook for International Solutions

    V. Conclusion
                                     ______

                                I. Introduction
        Long before there was an Exxon Valdez spewing over ten million
    gallons of crude oil into cold Alaskan waters on March 24, 1989,\1\
    there was a law establishing a comprehensive compensation and liability
    scheme for oil discharges into United States waters.\2\ For fifteen
    years, Congress had debated the need to improve that scheme to no
    avail.\3\ Then came the Exxon Valdez oil spill, an incident that
    highlighted the inadequacies of the existing legal regime as never
    before, raising the level of national concern and the severity of the
    congressional response--perhaps too far in light of the actual
    environmental harm caused by the vast majority of spills each year.
    More than anything else, that incident provided the driving force for a
    revamped oil spill law. The Oil Pollution Act of 1990\4\ (OPA), signed
    by President Bush on August 18, 1990, reflected a new sensitivity to
    those harmed by oil spills, as well as a pro-environmental stance,
    triggered in part by a uniform anger at ``Big Oil.'' The resulting
    legislation forcefully addresses the shortcomings of the pre-OPA law:
    inadequate measures for preventing spills; unrealistic and confused
    clean up plans; weak liability provisions; and a lack of Federal monies
    for cleanup.
    ---------------------------------------------------------------------------
        \1\ See generally Topics Concerning the Exxon Valdez Oil Spill into
    the Prince William Sound, Alaska, Before the Subcomm. on Coast Guard
    and Navigation of the House Comm. on Merchant Marine and Fisheries,
    101st Cong., 1st Sess. 20 (1989) (hereinafter Exxon Valdez Hearing).
        \2\ Federal Water Pollution Control (Clean Water) Act Sec. 311, 33
    U.S.C. Sec. 1321 (1988) (originally enacted as Act of October 18, 1972,
    Pub. L. No. 92-500, Sec. 2, 86 Stat. 862).
        \3\ Jones, Oil Spill Compensation and Liability Legislation,19
    Envtl. L. Rep. 10,333, 10,333 (1989).
        \4\ Pub. L. No. 101-380. 104 Stat. 484 (1990)(codified as amended
    in scattered sections of the U.S.C.).
    ---------------------------------------------------------------------------
        This Article begins by providing an overview of the state of the
    law before passage of the OPA. The OPA is then discussed in-depth,
    contrasting and comparing it to the pre-existing law and offering
    insight into the Act's key controversies and their resolutions in
    Congress. Discussion of the OPA begins by looking at provisions of the
    Act dealing with oil spill prevention and preparedness by addressing
    Federal removal authority, oil spill contingency plan requirements, and
    double hull requirements for tank vessels. Next follows a discussion of
    the OPA's liability regime, exploring a number of significant
    provisions: compensation for removal costs and damage incurred,
    defenses to liability, oil spill trust fund monies, extent of cleanup
    requirements, claims procedure against responsible parties, limitations
    on liability, financial responsibility requirements, penalties, natural
    resource damage compensation, jurisdiction and venue requirements, and
    preemption. The Article concludes with a discussion of the 1984 Oil
    Spill Protocols, which attempt to address the problem of oil spills at
    the international level, and the failure of the United States to ratify
    the Protocols.
                II. The Law Before the Oil Pollution Act of 1990
        Prior to the OPA, section 311 of the Clean Water Act\5\ constituted
    the chief strategy for cleaning up and recompensing those who had been
    damaged by a release of oil.\6\ Discharges of oil into or upon the
    navigable waters of the United States,\7\ the contiguous zone of the
    United States,\8\ or shorelines adjoining these areas were prohibited
    under this section, as were discharges potentially affecting natural
    resources claimed by the United States.\9\ As the United States has
    claimed jurisdiction over fishery resources located within the 200-mile
    United States Exclusive Economic Zone\10\ and continental shelf, as
    well as migrating anadromous species even beyond these ocean areas,\11\
    this latter reference to natural resources was an important seaward
    extension of liability for oil discharges.
    ---------------------------------------------------------------------------
        \5\ 33 U.S.C. Sec. 1321 (1988). Citations to section 311 of the
    Clean Water Act (CWA) may be found at 33 U.S.C. Sec. 1321 (1988);
    subsections of the CWA correspond identically to those found in the
    United States Code. The official statutory name of the Act is the
    Federal Water Pollution Control Act.
        \6\ Section 311 also covers discharges of hazardous substances, but
    the Comprehensive Environmental Response, Compensation, and Liability
    Act (CERCLA), 42 U.S.C. Sec. Sec. 9601-9676 (1988), generally
    establishes liability and response actions for those incidents. This
    paper is restricted to a discussion of oil discharges only, although
    several provisions of the Oil Pollution Act, most notably contingency
    planning and increased penalties, have ramifications for activities
    under CERCLA.
        \7\ Navigable waters are defined as ``the waters of the United
    States, including the territorial seas.'' 33 U.S.C. Sec. 1362(7)
    (1988). In turn, ``waters of the United States'' are broadly defined by
    regulation to include all waters susceptible now or in the past for use
    in interstate or foreign commerce, all interstate waters, all other
    waters affecting interstate or foreign commerce, impoundments of waters
    otherwise meeting the definition, tributaries to any of the waters, the
    territorial sea, and wetlands which abut any of these waters. 33 C.F.R.
    Sec. 328.3(a) (1990). ``Territorial seas'' is defined in the Clean
    Water Act as extending from the ordinary low water mark seaward three
    miles. 88 U.S.C. Sec. 1362(8) (1988). President Reagan extended the
    territorial sea, for purposes of international law only, to 12 miles in
    late 1988. Proclamation No. 6928, 54 Fed. Reg. 777 (1988), reprinted in
    43 U.S.C. Sec. 1331 note (1988) (Authorization of Appropriations).
        \8\ The contiguous zone may extend 12 miles seaward from the
    baseline from which the territorial sea is measured. Convention on the
    Territorial Sea and Contiguous Zone, Apr. 29, 1958, art. 24, 15 U.S.T.
    1606, 1612. See also 40 C.F.R. Sec. 300.6 (1990). See supra note 7 for
    the meaning of territorial seas.
        \9\ 83 U.S.C. Sec. 1321(b)(1) (1988).
        \10\ Proclamation No. 5030, 48 Fed. Reg. 10,605 (1983), reprinted
    in.16 U.S.C.A. Sec. 1453, note (West 1985).
        \11\ 16 U.S.C.A. Sec. 1811 (West Supp. 1991).
    ---------------------------------------------------------------------------
        If a discharge of oil had occurred under the pre-OPA regime, the
    owners and operators of a vessel or facility from which oil was
    discharged were required to report the spill\12\ to the United States
    Coast Guard.\13\ Failure to report a spill subjected a discharger to a
    fine of up to $10,000 or imprisonment of up to one year.\14\ For the
    discharge itself, civil penalties of up to $5,000 could be assessed by
    the Coast Guard.\15\ In lieu of a Coast Guard administrative penalty,
    the Administrator of the Environmental Protection Agency (EPA) was
    empowered to pursue more stringent action in court if the discharge was
    the result of willful negligence or willful misconduct within the
    privity or knowledge of the owner or operator. In that case, penalties
    could rise to $250,000 per incident.\16\ Section 31l(f)(6) authorized
    the President to designate Federal trustees on behalf of the public for
    any natural resource which was damaged by the oil spill and allowed
    suits by these trustees to recover the costs of restoring or replacing
    harmed natural resources.
    ---------------------------------------------------------------------------
        \12\ The Clean Water Act requires that only discharges of
    ``harmful'' quantities of oil must be reported. 33 U.S.C.
    Sec. 1321(b)(3), (5) (1988). This has been defined by regulation to
    mean any amount of oil which violates a water quality standard or
    causes a sheen on the water. 40 C.F.R. Sec. 110.4 (1990).
        \13\ Exec. Order No. 11,785, 38 Fed. Reg. 21,243 (1973), amended by
    Exec. Order No. 12,418, 48 Fed. Reg. 20,891 (1983).
        \14\ 83 U.S.C. Sec. 1321(b)(5) (1988).
        \15\ Id. Sec. 1321(b)(6)(A).
        \16\ Id. Sec. 1321(b)(6)(B).
    ---------------------------------------------------------------------------
        Once a covered discharge occurred, or if there was a substantial
    threat of a discharge, the Clean Water Act authorized various Federal
    responses. The most basic authority was found under section 311(c)(1),
    where the President was authorized to ``remove or arrange for the
    removal'' of the discharge. While logic dictates that removal cannot
    occur if only a threat of a discharge exists, ``remove'' was (and is)
    defined to include actions necessary to minimize or mitigate damage to
    the public health or welfare.\17\ This could include assembling cleanup
    equipment at the site, protecting vulnerable coastal areas with
    containment boom, or relocating birds or animals away from a potential
    spill area. The President was given this authority rather than a
    specific Federal agency head to allow delegation to the appropriate
    entity, recognizing the respective jurisdictions of the United States
    Coast Guard and the EPA.\18\ In addition, other Federal agencies have
    been employed to assist in cleanup activities, most notably the
    Department of Defense.\19\ If the President acted under the foregoing
    authority, funding for removal actions came from a Federal fund
    established under section 311(k) of the Clean Water Act.
    ---------------------------------------------------------------------------
        \17\ Id. Sec. 1321(a)(8).
        \18\ Exec. Order No. 11,735, supra note 13. Division of authority
    is determined by the source of the, spill. If a vessel or
    transportation-related facility discharges oil, the Commandant of the
    Coast Guard is in charge. Other spills are handled by the EPA
    Administrator.
        \19\ The Ability of the Federal, Stale, and Local Governments to
    Respond to Oil Spills, Methods of Cleanup, Oil Spill Prevention, and
    Contingency Planning Before the Subcomm. on Coast Guard and Navigation
    of the House Comm. on Merchant Marine and Fisheries, 101st Cong., 1st
    Sess. 46 (1989) [hereinafter Ability Hearing].
    ---------------------------------------------------------------------------
        The President was not required to act if he determined that the
    owner or operator was capable of properly cleaning up the discharge.
    This latter course of action is the norm, as the vast majority of oil
    spills are small and more easily contained and removed by the operator
    of the vessel or facility who is almost always physically closest to
    the discharge.\20\ Additionally, the Federal government may be slow to
    ``federalize'' a spill if a financially solvent spiller is available to
    foot the bill for cleanup, as Federal dollars for this purpose have
    been extremely limited.\21\
    ---------------------------------------------------------------------------
        \20\ Id. at 45. See al80 H.R. 1465--To Establish Limitations on
    Liability for Damages Resulting from Oil Pollution, to Establish a Fund
    for the Payment of Compensation for Such Damages, and for Other
    Purposes Before the Subcomm. on Coast Guard and Navigation of the House
    Comm. on Merchant Marine and Fisheries, 101st Cong., 1st Sess. 40
    (1989) [hereinafter H.R. 1465 Hearing].
        \21\ See discussion regarding Clean Water ActSec. 311(k), infra
    notes 35-40 and accompanying text.
    ---------------------------------------------------------------------------
        Under the pre-OPA scheme, discharges from vessels in certain
    circumstances appeared to be covered by separate but similar authority.
    Section 311(d) of the Clean Water Act provided that, the Federal
    government may ``coordinate and direct'' efforts to clean up or
    minimize the threat of a discharge caused by a marine disaster. In
    addition, authority was provided to remove and destroy the vessel,
    notwithstanding limitations posed by employment and appropriations
    laws. Additional special authority to handle ``imminent and substantial
    threats'' of discharges from facilities could be found in section
    31l(e). Under this subsection, the President was authorized to secure
    any necessary relief in Federal court, such as an injunction, through
    the appropriate United States attorney. Finally, Section 311(b)(6)(c)
    specifically authorizes the EPA Administrator to mitigate the damage
    caused by an oil spill to the public health or welfare.
        These diverse authorities appear on their face to be overlapping at
    best, and possibly conflicting. However, the National Contingency Plan
    (NCP) attempted to untangle the various roles by assigning duties to
    Federal actors. Section 311(c)(2) of the Clean Water Act required the
    President to promulgate the NCP.\22\ It served as the game plan for the
    Federal government to minimize the damage from an oil spill. Beyond
    providing a delineation of Federal responsibilities, the Clean Water
    Act required the NCP to address key components of an oil spill response
    strategy: specification of removal techniques;\23\ creation of oil
    spill strike teams to respond to oil spills;\24\ establishment of a
    national coordination center for oil spill response;\25\ procedures
    governing the use of dispersants;\26\ and delegation of authority to
    the states to react to oil spills.\27\ The President was also directed
    under subsection 311G) of the Clean Water Act to supplement the NCP
    with regulations establishing: procedures for removing spilled oil;
    criteria for regional and local oil spill removal contingency plans;
    oil spill prevention requirements; and vessel inspection requirements
    for oil-carrying tankers. Violations of these regulations subjected the
    owner or operator of a facility to a civil penalty of up to $5,000.
    ---------------------------------------------------------------------------
        \22\ The NCP prior to the Oil Pollution Act is found at 40 C.F.R.
    Sec. 300 (1989).
        \23\ Id. Sec. Sec. 300.51-.58 (1989).
        \24\ Id. Sec. 300.34 (1989).
        \25\ Id. Sec. 300.36 (1989). The National Response Center is
    located at the U.S. Const Guard headquarters in Washington, D.C.
        \26\ Id. Sec. Sec.  300.81-.86 (1989).
        \27\ 40 C.F.R. Sec. 300.24 (1989).
    ---------------------------------------------------------------------------
        Under section 311(f) of the Clean Water Act the owner or operator
    of the vessel or facility (both onshore and offshore) was liable for
    the removal costs incurred by any of the authorized Federal parties, as
    well as costs incurred by the United States or a state to restore or
    replace damaged natural resources.\28\ Liability costs were limited to,
    in the case of a facility, $50 million; for inland barges the greater
    of $125 per gross ton or $125,000; for tankers which carry oil as
    cargo, the greater of $150 per gross ton or $250,000; and for all other
    vessels, $150 per gross ton.\29\ Additionally, the President was
    authorized at his discretion to lower limits of liability for classes
    of facilities to $8 million.\30\
    ---------------------------------------------------------------------------
        \28\ Only this limited cause of action running to government
    entities is provided by the Clean Water Act. Private claims can be
    pursued under state or common law.
        \29\  33 U.S.C. Sec. 1321 (1988).
        \30\ Id. Sec. 1321(q).
    ---------------------------------------------------------------------------
        These limits of liability could be breached if the discharge was
    caused by willful negligence or by willful misconduct within the
    privity and knowledge of the owner or operator.\31\ On the other hand,
    owners and operators could completely absolve themselves of
    responsibility if they could prove that the discharge was caused solely
    by an act of God, an act of war, or negligence on the part of the
    Federal government. The owner or operator could also escape liability
    if she could prove that a third party was the sole cause of the
    discharge, in which case liability attached to the third party.\32\ If
    the owner or operator of a discharging vessel or facility incurred
    removal costs, and could prove that he or she was entitled to a defense
    to liability, the owner or operator could recover removal expenses from
    the United States under subsection 311(i).
    ---------------------------------------------------------------------------
        \31\ Id. Sec. 1321(g).
        \32\ Id. However, the owner or operator must pay first and then
    bring suit against the third party to recover those costs.
    ---------------------------------------------------------------------------
        The pre-OPA scheme required owners and operators of all vessels
    over 300 tons which used any United States port to provide evidence of
    sufficient finances to cover the applicable liability limits.\33\
    Vessels which did not provide evidence of financial responsibility
    could be denied entry to, or be detained in, United States ports. The
    owners or operators of such vessels could be subject to a $10,000
    fine.\34\
    ---------------------------------------------------------------------------
        \33\ Id. Sec. 1321(p)(1). Barges that are not self-propelled and
    that do not carry oil or fuel as cargo are excepted.
        \34\ 33 U.S.C. Sec. 1321(p)(4) (1988).
    ---------------------------------------------------------------------------
        Federal activities under section 311 were paid from a revolving
    fund established under subsection 311(k).\35\ Appropriations of $35
    million were authorized for the fund,\36\ a sum which would be wholly
    inadequate to fund Federal actions for all of the thousands of spills
    reported each year.\37\ In addition, actual appropriations never even
    reached that paltry amount.\38\ At the time of the Exxon Valdez
    disaster, the section 31l(k) fund had been depleted to less than $4
    million at a time when Exxon was spending $1 million a day.\39\ Such
    shortages can easily lead to a less than enthusiastic Federal response
    effort.\40\
    ---------------------------------------------------------------------------
        \35\ Another Federal fund for oil spill costs existed prior to
    enactment of the Oil Pollution Act. 26 U.S.C. Sec. 9509 (1988).
    However, the availability of this fund was contingent upon the
    enactment of a comprehensive oil spill act such as the Oil Pollution
    Act of 1990.
        \36\ 33 U.S.C. Sec. 1321(k)(1) (1988), repealed by Oil Pollution
    Act of 1990, Pub. L. No. 101-380, Sec. 2002(b)(2), 104 Stat. 507. As a
    revolving fund. sums paid out of the fund are to be recovered from the
    responsible spillers, but this has not proved out in practice. H.R.
    1465 Hearing. supra note 20, at 202.
        \37\ This number has been variably given as 5,700, 8,500, or 8,800.
    H.R. 1465 Hearing, supra note 20 at 40; Ability Hearing, supra note 19,
    at 23 & 45.
        \38\ H.R. 1465 Hearing, supra note 20, at 202.
        \39\ Exxon Valdez Hearing, supra note 1, at 22-23; see also H.R.
    1465 Hearing, supra note 20, at 202.
        \40\ Exxon Valdez Hearing, supra note 1, at 23.
    ---------------------------------------------------------------------------
        Other oil spill liability schemes and accompanying funds were
    provided for in the Deepwater Port Act of 1974\41\ for deepwater
    ports,\42\ title III of the Outer Continental Shelf Lands Act
    Amendments of 1978\43\ for outer continental shelf oil and gas
    facilities,\44\ and the Trans-Alaska Pipeline Authorization Act\45\ for
    oil carried through the trans-Alaska pipeline.\46\ In addition to these
    Federal laws, states were not prohibited from establishing their own
    liability regimes and funds. Many states have liability laws for oil
    spills and several have established dedicated funds for oil spill
    removal and compensation.\47\ This patchwork of Federal and state laws
    set the stage for the development of an improved comprehensive oil
    pollution regime.
    ---------------------------------------------------------------------------
        \41\ 33 U.S.C. Sec. Sec. 1601-1524 (1988).
        \42\ Id. Sec. 1507, repealed by OPA Sec. 2003(a)(2).
        \43\ 43 U.S.C.A. Sec. Sec. 1811-1824 (West 1988).
        \44\ Id.. Sec. Sec. 1811-1824, repealed by OPA Sec. 2004.
        \45\ U.S.C.A. Sec. Sec. 1651-1655 (West 1988 & Supp. 1992).
        \46\ Id. Sec. 1653.
        \47\ See Costello & Gurevitz, Liability Provisions in State Oil
    Spill Laws: A Brief Summary, Congressional Research Service Report to
    Congress (Oct. 1, 1990). Twenty-four states have specific oil spill
    laws. Id.
    ---------------------------------------------------------------------------
                       III. The Oil Pollution Act of 1990
        The nine titles of the Oil Pollution Act (OPA)\48\ expand on the
    existing Clean Water Act liability scheme while adding substantial new
    provisions on oil spill prevention, increasing penalties for spills,
    and strengthening oil spill response capabilities.\49\ For the first
    time, the OPA consolidates Federal oil spill laws under a single
    program, with uniform Federal liability and compensation schemes.
    Although beyond the scope of this paper, the Act also establishes new
    oil spill research programs,\50\ and provides special protections for
    selected geographic areas,\51\ including Prince William Sound,
    Alaska,\52\ the site of the Exxon Valdez disaster.
    ---------------------------------------------------------------------------
        \48\ Pub. L. No. 101-380, 104 Stat. 484(1990) (codified as amended
    in scattered sections of the U.S.C.).
        \49\ In many cases, the Oil Pollution Act amended existing Clean
    Water Act section 311 provisions. In other case, new free-standing law
    was created.
        \50\ OPA Sec. 7001, 83 U.S.C.A. Sec. 2761 (West Supp. 1991).
        \51\ OPA Sec. Sec. 8001-8302, 43 U.S.C.A. Sec. Sec. 1651-1655 (West
    Supp. 1991).
        \52\ OPA Sec. Sec. 5001-1507, 33 U.S.C.A. Sec. 2731-2737 (West
    Supp. 1991).
    ---------------------------------------------------------------------------
                  A. Preparedness and Prevention of Oil Spills
        For the first 14 years that oilspill liability legislation was
    considered by the Congress, the focus was solely on liability for oil
    spills and compensation ensuing after a spill occurred.\53\ However,
    the magnitude of possible spills was highlighted by the Exxon Valdez
    situation, which indicated more than any other recent event that
    prevention of a spill should be the primary goal of oil spill
    legislation. Absent this, better preparedness for containment and
    cleaning up an oil spill is the key to minimizing the impacts from an
    oil spill. Accordingly, the liability and compensation regime found in
    previous oil spill bills was expanded to include substantial prevention
    and improved planning provisions.
    ---------------------------------------------------------------------------
        \53\ See Jones, supra note 3, at 10,337.
    ---------------------------------------------------------------------------
               1. Federal Removal Authority and Contingency Plans
        From the beginning, the goal in developing comprehensive oil spill
    legislation was to ensure an integrated federal, state, local, and
    private industry system of response and removal. To achieve this end,
    the drafters of the OPA first had to establish clear lines of
    responsibility. A common concern voiced by environmentalists, the oil
    industry, Federal officials, and others was that under the old system,
    no one was really in charge. As discussed above, under previous law,
    the President had two choices in dealing with an oil spill: monitor a
    spiller's cleanup effort or ''federalize'' the cleanup effort.\54\
    However, the legislative mandate triggering federalization was far from
    clear.
    ---------------------------------------------------------------------------
        \54\ 88 U.S.C. Sec. 182l(c)(1) (1988). See also supra notes 17-21
    and accompanying text.
    ---------------------------------------------------------------------------
        The OPA now requires the President, in accordance with the NCP, to
    en.sure the ``effective and immediate removal of a discharge, and
    mitigation or prevention of a substantial threat of a discharge . . .
    of oil.'' \55\ Under the umbrella of this general mandate, a third
    option is available to the President. The President, in addition to
    monitoring the cleanup efforts of the spiller or federalizing the
    spill, may actually direct the activities of the responsible parties
    and others.\56\ However, when the spill poses a substantial threat to
    the public health or welfare of the United States,\57\ the President is
    limited to federalizing the spill or directing the spiller's removal
    efforts.\58\
    ---------------------------------------------------------------------------
        \55\ OPA Sec. 4201(a), 33 U.S.C.A. Sec. 1321(c)(1) (West Supp.
    1991).
        \56\ OPA Sec. 4201(a), 33 U.S.C.A. Sec. 1321(c)(D)(B) (West Supp.
    1991).
        \57\ The Exxon Valdez incident is, as would be expected, an example
    of the type of spill that would constitute a substantial threat to the
    public health or welfare. H.R. Rep. No. 653, 101st Cong., 2d Sess. 145-
    46 (1990).
        \58\ OPA Sec. 4201(a), 33 U.S.C.A. Sec. 1321(c)(2) (West Supp.
    1991).
    ---------------------------------------------------------------------------
        The OPA also establishes limited immunity under Federal law for
    persons involved in an oil spill cleanup, including those persons
    retained or directed by the Coast Guard, and those rendering care,
    assistance, or advice consistent with the NCP.\59\ The authors did not
    want the Federal government to bear the burden of cleaning up all
    spills. Thus, it was necessary to ensure that private contractors would
    be available to assist owners and operators of vessels and facilities
    when a spill occurs. This immunity provision was deemed to be
    indispensable to cleanup contractors and essential to ensuring a
    nationwide network of cleanup contractors.\60\ Without it, legislators
    were told, it would be nearly impossible to assure an adequate number
    of cleanup contractors. When questioned about why there would be a
    problem when contractors had always been available in the past, one
    answer was always forthcoming-the Exxon Valdez had changed everything.
    ---------------------------------------------------------------------------
        \59\ OPA Sec. 4201(aX4)(A), 38 U.S.C.A. Sec. 1321(c)(4)(A) (West
    Supp. 1991).
        \60\ In August 1990, about 20 oil companies created the Marine
    Spill Response Corporation (MSRC). MSRC is headquartered in Washington,
    D.C., and has established five regional response centers in the New
    York-New Jersey area; Port Everglades, Florida; Lake Charles,
    Louisiana; Port Hueneme, California; and Seattle, Washington. Each
    region will have four to six prestaging areas where equipment, and
    sometimes vessels and personnel, will be located. This will complement
    existing oil spill cooperatives and independent response contractors.
    ---------------------------------------------------------------------------
        The contractor immunity provided for in the OPA, however, is
    limited: immunity does not extend to a responsible party, to a response
    action taken under the Comprehensive Environmental Response,
    Compensation and Liability Act, when there is personal injury or
    wrongful death, or if the contractor is grossly negligent or engages in
    willful misconduct.\61\
    ---------------------------------------------------------------------------
        \61\ 33 U.S.C.A. Sec. 1321(c)(4)(B) (West Supp. 1991).
    ---------------------------------------------------------------------------
        In addition to broadening the authority of the Federal government
    to respond to an oil spill, the OPA also expands and strengthens the
    role of the NCP.\62\ As stated above, the NCP already existed under the
    Clean Water Act,\63\ but the Exxon Valdez spill highlighted the need to
    update the plan and provide for a better coordinated system of federal,
    state, local, and private response and preparedness.
    ---------------------------------------------------------------------------
        \62\ OPA Sec. 4.201(b), 33 U.S.C.A. Sec. 1321(d) (West Supp. 1991).
    The NCP also applies to discharges of hazardous substances, and any
    changes made to it also will affect actions taken under the
    Comprehensive Environmental Response, Compensation, and Liability Act.
        \63\ 33 U.S.C. Sec. 1821(c)(2) (1988). The existing Federal
    regulatory structure designed to respond to spills of oil under the
    Clean Water Act is basically untouched by the Oil Pollution Act. The
    NCP establishes the National Response Team (NRT), which is a national
    planning, policy, and coordinating body. The NRT does not respond to
    spills, but provides guidance and assistance to others before and after
    a spill. ]t includes members from 14 federal agencies having
    environmental responsibilities. The NRT is chaired by the EPA and vice-
    chaired by the Coast Guard. The NCP also establishes 13 Regional
    Response Teams (RRTs). There are also planning and policy organizations
    which do not respond to spills. Each RRT is cochaired by the Coast
    Guard and EPA. See 33 U.S.C.A. Sec. 1321(j) (West Supp.1991). See also
    40 C.F.R. Sec. 300 (1990) (responsibility and organization for response
    under NCP).
    ---------------------------------------------------------------------------
        The OPA requires the President to prepare and publish an NCP for
    addressing the removal of a worst case discharge\64\ of oil and for
    mitigating or preventing a substantial threat of such a discharge.\65\
    Among other requirements are assignment of duties and responsibilities
    among Federal agencies in coordination with state and local agencies
    and port authorities; identification, procurement, maintenance, and
    storage of equipment and supplies; identification of procedures and
    techniques to be used in removing oil; preparation of a schedule, in
    cooperation with the states, to deal with the use of dispersants;
    establishment of procedures to coordinate activities by the Coast Guard
    strike teams, Federal On-Scene Coordinators,\66\ Coast Guard District
    Response Groups, and Area Committees; and development of a fish and
    wildlife response plan.\67\ The President is required to revise and
    publish the updated NCP not later than one year after the date of
    enactment.\68\
    ---------------------------------------------------------------------------
        \64\ OPA Sec. 4201(b), 33 U.S.C.A. Sec. 1321(a)(24) (West Supp.
    1991), defines a worst case discharge to mean ``(A) in the case of a
    vessel, a discharge in adverse weather conditions or its entire cargo;
    and (B) in the case of an offshore facility or onshore facility, the
    largest foreseeable discharge in adverse weather conditions.''
        \65\ OPA Sec. 4201(b), 33 U.S.C.A. Sec. 1321(d)(2)(J) (West Supp.
    1991).
        \66\ 40 C.F.R. Sec. 300.33 (1990) directs the Coast Guard and EPA
    to predesignate On-Scene Coordinators.
        \67\ OPA Sec. 4201(b), 33 U.S.C.A. Sec. 1321(d)(2) (West Supp.
    1991).
        \68\ OPA Sec. 4201(c), 33 U.S.C.A. Sec. 1321(d)(1) (West Supp.
    1991).
    ---------------------------------------------------------------------------
        Within this framework, the Act further establishes a multilayered
    planning and response mechanism, the ``National Planning and Response
    System.'' This System provides for a National Response Unit, Coast
    Guard District Response Groups, Area Committees, Area Contingency
    Plans, and Tank Vessel and Facility Response Plans.\69\ A description
    of each follows.
    ---------------------------------------------------------------------------
        \69\ OPA Sec. 4202, 33 U.S.C.A. Sec. 1321(j) (West Supp. 1991).
    ---------------------------------------------------------------------------
        (1) The National Response Unit\70\ (renamed the National Strike
    Force Coordination Center) is a Coast Guard operation that was
    established in August 1991, at Elizabeth City, North Carolina. It will
    coordinate private and public responses to a spill. It will serve the
    important functions of compiling a list of oil spill removal resources,
    personnel, and equipment worldwide; administering the Coast Guard
    strike teams; training response personnel around the country; and
    reviewing contingency and response plans.
    ---------------------------------------------------------------------------
        \70\ OPA Sec. 4202(a), 33 U.S.C.A. Sec. 1321(j)(2) (West Supp.
    1991).
    ---------------------------------------------------------------------------
        (2) A Coast Guard District Response Group\71\ is established in
    each of the 10 Coast Guard Districts around the country. Each Group
    will be comprised of personnel and equipment on call 24 hours a day to
    respond to oil spills in every port within the district.
    ---------------------------------------------------------------------------
        \71\ OPA Sec. 4202(a), 33 U.S.C.A. Sec. 1321(j)(3) (West Supp.
    1991).
    ---------------------------------------------------------------------------
        (3) Area Committees\72\ will be comprised of individuals from
    federal, state, and local agencies whose function will be to prepare
    Area Contingency Plans. The President is required to delineate by
    February 1991 geographic areas for which Area Committees are to be
    established. All navigable waters, adjoining shorelines, and waters of
    the Exclusive Economic Zone are to be covered by an Area Contingency
    Plan.
    ---------------------------------------------------------------------------
        \72\ OPA Sec. 4202(a), 33 U.S.C.A. Sec. 1321(j)(4) (West Supp.
    1991).
    ---------------------------------------------------------------------------
        (4) The Area Contingency Plans\73\ are to ensure the removal of a
    worst case spill from a vessel or facility operating in or near the
    area covered by the Plan. One of the chief responsibilities of the
    National Response Unit and the Area Committees in preparing and
    reviewing the Plans is ensuring that each Plan fits neatly into the
    overall response capabilities when implemented in conjunction with the
    other plans mandated under the OPA Each Area Committee bas 18 months
    after enactment to submit a Plan to the President, and the President
    has six months thereafter to review and approve the Plan.\74\
    ---------------------------------------------------------------------------
        \73\ Id.
        \74\ Id. Sec. 4.202(b), 33 U.S.C.A. Sec. 1321 note (West Supp.
    1991) (Implementation of National Planning and Response System).
    ---------------------------------------------------------------------------
        (5) Tank Vessel and Facility Response Plans\75\ are to be designed
    to allow an owner or operator to respond, to the maximum extent
    practicable, to a worst case discharge of oil or the substantial threat
    of such a discharge. The lesser standard, meeting a worse case
    discharge to the maximum extent practicable, was adopted in recognition
    of the more limited response and planning capabilities of an individual
    owner or operator as opposed to a port area. All United States flag
    tank vessels,\76\ other than public vessels,\77\ are required to
    develop a plan. All other tank vessels operating on the navigable
    waters of the United States or transforming oil in a port or place
    subject to the jurisdiction of the United States must also meet the
    Response Plan requirements.\78\ Finally, offshore and onshore
    facilities must have Plans.\79\ For onshore facilities, the requirement
    is limited to those that, because of their location, could reasonably
    be expected. to cause substantial harm to the environment by
    discharging into the navigable waters, adjoining shorelines, or the
    Exclusive Economic Zone.\80\
    ---------------------------------------------------------------------------
        \75\ OPA Sec. 4202(a), 33 U.S.C.A. Sec. 1321(j)(5) (West Supp.
    1991).
        \76\ Tank vessels are defined w; vessels that are constructed or
    adapted to carry, or that carry, oil as cargo or cargo residue. 46
    U.S.C. Sec. 2101(3g) (1988).
        \77\ A public vessel is defined as a vessel owned or bareboat
    chartered by the United States, a state, or n foreign country for
    noncommercial purposes. OPA Sec. 1001(29), 33 U.S.C.A. Sec. 2701(29)
    (West Supp. 1991).
        \78\ OPA Sec. 4202, 38 U.S.C.A. Sec. 1321(j)(5)(B)(i) (West Supp.
    1991).
        \79\ OPA Sec. 4202, 33 U.S.C.A. Sec. 1321(j)(5)(B)(ii) and (iii)
    (West Supp. 1991).
        \80\ OPA Sec. 4202, 33 U.S.C.A. Sec. 1321(j)(5)(B)(iii) (West Supp.
    1991).
    ---------------------------------------------------------------------------
        The requirement that Tank Vessel and Facility Plans be developed
    consistently with the NCP and Area Contingency Plans and higher burden
    of response should ensure that even in the most disastrous
    circumstances there will be adequate response capabilities available,
    if not in the local area, then from Federal strike teams, or other
    private resources around the country.
        The Presidential regulations for these Tank Vessel and Facility
    Response Plans are due two years after enactment. The Response Plans
    themselves are required to be submitted for approval to the President
    not later than 30to 36 months after enactment.\81\ By then, the NCP
    will have been updated and the Area Contingency Plans will have been
    developed, allowing owners and operators to key into those contingency
    plans in preparing their individual Response Plans. The Coast Guard or
    the EPA will review each Response Plan, require amendments as
    necessary, and approve any plan that meets the approval criteria.\82\
    In addition, in keeping with the concept of ongoing preparedness, the
    Response Plans have to be reviewed periodically thereafter.
    ---------------------------------------------------------------------------
        \81\ OPA Sec. 4102(b)(4), 33 U.S.C.A. Sec. 1321 note (West Supp.
    1991) (Implementation of National Planning and Response System).
        \82\ The requirement for Presidential approval and review of Area
    Contingency Plans is found in section 4202(a) of the OPA, 33 U.S.C.A.
    Sec. 1321(j)(4)(D) (West Supp. 1991). The requirement for Presidential
    review and approval for Tank Vessel and Facility Response Plans is
    found in section 4202(a) of the OPA, 33 U.S.C.A. Sec. 1321(j)(5)(D)
    (West Supp. 1991).
    ---------------------------------------------------------------------------
        Covered vessels and facilities are prohibited from operating
    without a submitted Response Plan beginning two-and-a-half years after
    enactment, and from operating without an approved Plan three years
    after enactment.\83\ Both the Coast Guard and EPA were especially
    concerned about having to review and approve the large number of
    Response Plans expected to be submitted to them. The Coast Guard
    estimates that it alone will have 3,500 facilities and 4,600 tank
    vessels covered under this section.\84\ This number may prevent review
    and approval before the deadlines. The drafters of the OPA believed
    that responsible owners and operators who submitted their Plans in a
    timely manner should not be punished by this possible government
    backlog. Therefore, the President is given the authority to allow a
    vessel or facility to operate up to two years after its Plan has been
    submitted, provided that the owner or operator certifies that private
    personnel and equipment have been secured by contract.\85\
    ---------------------------------------------------------------------------
        \83\ OPA Sec. 4202(b)(4)(B), 33 U.S.C.A. Sec. 1321 note (West Supp.
    1991) (Implementation of National Planning and Response System).
        \84\ Telephone interview with Capt. W. F. ``Biff'' Holt, Division
    Chief, Marine Environmental Protection, U.S. Coast Guard (Dec. 7,
    1990).
        \85\ OPA Sec. 4202(a), 33 U.S.C.A. Sec. 1321(j)(5)(F) (West Supp.
    1991).
    ---------------------------------------------------------------------------
        In addition to the volume of Response Plans that have to be
    approved, the agencies were concerned about their potential liability.
    Specifically, they were apprehensive about putting their imprimatur on
    a plan only to have an operator who caused an accident point a finger
    at the Federal government in an attempt to absolve herself from
    liability. For that reason, a provision was included that sets out
    clearly that the United States is not liable for any damages resulting
    from approval of a contingency plan.\86\
    ---------------------------------------------------------------------------
        \86\ OPA Sec. 4202(a), 33 U.S.C.A. Sec. 1321(j)(8) (West Supp.
    1991).
    ---------------------------------------------------------------------------
        The authors of the OPA wanted to ensure that Tank Vessel and
    Facility Response Plans were comprehensive, effective, and workable.
    Rather than having a thick, detailed, complicated document on board
    each vessel and at each facility, the drafters opted for a simple
    approach. A person who has authority to implement the plan must be
    designated. That person is responsible for contacting the appropriate
    Federal official and contractors enlisted to provide equipment and
    personnel. The authors also considered it important to have adequate
    response capability on call, under contract, and capable of responding
    to a large spill Therefore, all owners or operators are required to
    have private organizations under contract before a Response Plan can be
    approved.\87\
    ---------------------------------------------------------------------------
        \87\ HR. Rep. No. 653, supra note 67, at 150. See also supra note
    60 regarding creation of the Marine Spill Response Corporation.
    ---------------------------------------------------------------------------
        The Tank Vessel Response Plans must describe the training,
    equipment testing, and response actions to be carried out by personnel
    on the vessel to ensure the safety of the vessel. Personnel on board a
    vessel should first see to the safety of the vessel rather than
    devoting time and attention to responding to a spill. However, it is
    important that personnel know the rudiments of responding and do what
    they can to mitigate the threat of a spill consistent with the safety
    of the crew and the vessel. For this reason, the requirement for on-
    board oil spill response equipment was included in the OPA. The
    equipment must be compatible with the safe operation of the vessel.\88\
    ---------------------------------------------------------------------------
        \88\ OPA Sec. 4202(B), 33 U.S.C.A. Sec. 1321(j)(6) (West Supp.
    1991).
    ---------------------------------------------------------------------------
        The Coast Guard is required to conduct drills, without prior
    notice, to test the workability of the layers of Contingency and
    Response Plans. Again, in keeping with the theme of an integrated
    response capability, federal, state, and local organization will
    participate as well as private industry. Afterwards, the relevant plans
    will be assessed and, if necessary, amended.\89\
    ---------------------------------------------------------------------------
        \89\ OPA Sec. 4202, 33 U.S.C.A. Sec. 1321(j)(7) (West Supp. 1991).
    ---------------------------------------------------------------------------
                                2. Double Hulls
        The requirement for double hulls on tank vessels resolved a
    contentious prevention issue that had undergone years of debate and
    discussion. Double hulls on vessels can provide an additional layer of
    protection for the oil cargo if the vessel should run aground or is
    otherwise punctured. However, opponents of double hulls claim that once
    the outer hull of a vessel is breached, water can enter into the space
    between the hulls, causing severe stability problems. This could impede
    salvage attempts or cause the vessel to capsize, losing the entire oil
    shipment.
        The legislative history behind this measure is particularly
    instructive of the anti-Big Oil/pro-environment color of the OPA. In
    the 101st Congress, the Senate acted first in passing an oil spill
    bill, Senate Bill 686.\90\ It required the Secretary of Transportation
    to determine whether double hulls or double bottoms would enhance oil
    tanker safety and environmental protection. The bill also required the
    Secretary to investigate alternative technologies.\91\ Similarly, the
    House predecessor bill to the OPA, H.R. 1465,\92\ directed the
    Secretary of Transportation to evaluate the efficacy of double hulls
    and double bottoms. The study was to emphasize their environmental
    safety record, and the associated costs and benefits. The Secretary was
    directed to consider alternative technologies as well.\93\
    ---------------------------------------------------------------------------
        \90\ S. 686, 101st Cong., 1st Sess., 135 Cong. Rec. S10,070-90
    (daily ed. Aug. 4, 1989).
        \91\ S. 686, 101st Cong., 1st Sess., Sec. 308(a), 135 Cong. Rec.
    S10,406, S10,416 (daily ed. Aug. 16, 1989).
        \92\ H.R. 1466, 101st Cong., 1st Sess. (1989) (introduced by
    Congressman Walter B. Jones and others).
        \93\ H.R. 1465, 101st Cong., 1st Sess. Sec. 420(8)(0) (1989).
    ---------------------------------------------------------------------------
        On November 9, 1989, the House of Representatives adopted two
    amendments to its bill that were purported to be complementary.\94\ The
    first amendment required all new tank vessels to be equipped with a
    double hull. Existing vessels would have an additional 15 years after
    the bill's enactment to meet the double hull requirement.\95\ The
    second amendment required new self-propelled tank vessels of at least
    20,000 gross tons to be equipped with a double bottom. Existing self-
    propelled tank vessels were to retrofit with double bottoms within
    seven years.\96\ Confusion over the effect of these amendments is
    apparent, given that double hulls include double bottoms, the weight
    class restrictions in the second amendment, and that self-propelled
    tank vessels are a subset of tank vessels.
    ---------------------------------------------------------------------------
        \94\ 135 Cong. Rec. H8262 (daily ed. Nov. 9, 1989).
        \95\ Id. This amendment originally included a weight class
    restriction, but this provision was deleted by another amendment. Id.
    at H8272.
        \96\ Id. at H8263.
    ---------------------------------------------------------------------------
        A third double hull amendment was offered as a substitute for the
    previous two amendments which was identical to the Senate's double hull
    provision. Its author cited its strong support by the environmental
    community after adoption by the Senate months before.\97\ However, the
    ``greener than thou'' fever that seemed to grip Members of the House of
    Representatives between Senate passage and House consideration of oil
    spill legislation was particularly evident during the November days
    when H.R. 1465 was before the House. After spirited debate, the third
    amendment was rejected by a voice vote, and the conflicting double hull
    amendments were passed as part of H.R. 1466.\98\
    ---------------------------------------------------------------------------
        \97\ Id. Rec. H8272.
        \98\ Id.
    ---------------------------------------------------------------------------
        During the House-Senate Conference on this provision, the Senate
    made an offer on double hulls to the House that was even stronger than
    the House-passed bill. After wide circulation, the proposal was met
    with strong opposition,\99\ and consequently, it was quickly withdrawn.
    A complicated compromise was arrived at by the House and Senate
    conferees based on an elaborate formula, taking into account vessel
    size, type, and age. However, there is no explicit legislative history
    on how this formula was arrived at.
    ---------------------------------------------------------------------------
        \99\ Tanker Bill May Not Cut Alaska Risk, Anchorage Daily News,
    Mar. 29, 1990, at 2.
    ---------------------------------------------------------------------------
        The final version of the double hull provision is found in section
    4115 of the OPA It adds a new section 3703a to title 46, United States
    Code.\100\ The new section provides that almost all newly-built tank
    vessels must be built with double hulls. This applies to all vessels
    carrying oil, regardless of their flag, when they are operating on
    waters subject to the jurisdiction of the United States, including the
    200-mile Exclusive Economic Zone.\101\
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        \100\ Chapter 37 of title 46, United States Code, deals with the
    carriage of liquid bulk dangerous cargoes.
        \101\ OPA Sec. 4115(a), 46 U.S.C.A. Sec. 3703a(a) (West Supp.
    1991).
    ---------------------------------------------------------------------------
        Certain vessels are exempt from the double hull requirement.\102\
    Vessels used only to respond to an oil spill are not required to have
    double hulls because their capacity would be so reduced as to make them
    less effective. Vessels under 5,000 gross tons are also exempt from the
    double hull requirement, but must have a double containment system
    determined by the Secretary of Transportation to be as effective as a
    double hull for oil spill prevention.\103\ This exemption will
    primarily affect inland tank barges. The justification for this
    exemption is that these vessels move more slowly in calmer waters and
    have a smaller carrying capacity, thus reducing the potential for a
    large spill.
    ---------------------------------------------------------------------------
        \102\ OPA Sec. 4115(a), 46 U.S.C.A. Sec. 3703a(b) (West Supp.
    1991).
        \103\ In making this determination, the Secretary may consider
    vessel size and the environment in which the vessel operates. The
    Secretary may find that flexible bladders, double aides, or other
    combinations of technology are equally as effective as double hulls.
    H.R. Rep. No. 653, supra note 57, at 139.
    ---------------------------------------------------------------------------
        A third category of exempt vessels are those that unload at
    deepwater ports.\104\ However, these vessels are required to have
    double hulls after January 1, 2016.\105\ This temporary exemption was
    allowed because deepwater ports move tanker traffic far offshore, thus
    reducing the risk of spills harming United States ports and shore
    lines.\106\ This temporary exemption also applies to delivering vessels
    offloading oil more than sixty miles from shore. These activities will
    have to be conducted in lightering zones.\107\ Again, the reason for
    the temporary exemption is the distance from shore and lower potential
    for collisions and groundings.
    ---------------------------------------------------------------------------
        \104\ The only port currently licensed under the Deepwater Port Act
    is located off the coast of New Orleans, Louisiana. It is known as the
    Louisiana Offshore Oil Port (LOOP).
        \105\ OPA Sec. 4115(e), 46 U.S.C.A. Sec. 3703a(b)(3) (West Supp.
    1991).
        \106\ The safety record and potential for collisions or groundings
    are significantly lower at deepwater ports. H.R. Rep. No. 653, supra
    note 57, at 139.
        \107\ OPA Sec. 4115(a), 46 U.S.C.A. Sec. 3703a(b)(3)(B) (West Supp.
    1991).
    ---------------------------------------------------------------------------
        In the case of lightering vessels,\108\ the authors of the OPA
    recognized that often there was not a direct nexus between the
    delivering vessel and the United States; this is not true for a
    receiving vessel which usually enters a United States port to offload
    the received oil. Because of international law implications and
    constraints, the OPA imposes various requirements on the delivering
    vessel through the receiving vessel. This is accomplished through
    amending section 3715(a) of title 46, United States Code. This amended
    section requires both delivering and receiving vessels engaged in
    lightering transfers that result in the delivery of oil to the United
    States to be in compliance with the double hull requirements of the
    OPA. This is accomplished by mandating that a receiving vessel may only
    receive oil from a delivering vessel that complies with section 3703a
    as well as other requirements of section 3715(a).\109\
    ---------------------------------------------------------------------------
        \108\ Lightering involves the transfer of cargo from a large vessel
    (the delivery vessel) to smaller ones (the receiving vessels). It often
    involves the use of huge supertankers which are incapable of
    maneuvering into shallow-draft United States ports for offloading.
        \109\ OPA Sec. 4115(d)(3), 46 U.S.C.A. Sec. 3715(a)(5) (West Supp.
    1991). The other requirements are that the delivering and receiving
    vessels have evidence of financial responsibility under section 1016 of
    the OPA, and comply with the response plan requirements of section
    311(j) of the Clean Water Act.
    ---------------------------------------------------------------------------
        The OPA provides for the phaseout of existing vessels beginning in
    1995, based on age and size.\110\ The age of an existing vessel is
    determined from the later of the date on which the vessel is delivered
    after original construction or is delivered after completion of a major
    conversion.\111\ The phaseout schedule was developed with the idea of
    getting vessels without double hulls out of the trade as quickly as
    possible without undue adverse impact on the transportation of oil, and
    to assure worldwide shipyard capacity to accommodate the new
    construction.
    ---------------------------------------------------------------------------
        \110\ OPA Sec. 4115(0), 46 U.S.C.A. Sec. 3703(c) (West Supp. 1991).
        \111\ OPA Sec. 4115(11), 46 U.S.C.A. Sec. 8703a(c)(1) (West Supp.
    1991). One exception to this rule is for a vessel that has been rebuilt
    under the Wrecked Vessel Act. 46 U.S.C. app. Sec. 14 (1988). Its age is
    determined from the date on which the vessel had its appraised value
    determined by the Coast Guard and is qualified for documentation.
    ---------------------------------------------------------------------------
        Vessels of at least 5,000 gross tons but less than 15,000 gross
    tons begin to be phased out in January 1995. Vessels in service after
    that date that are forty years old or older and have a single hull, or
    are forty-five years old or older and have a double bottom or double
    sides must be decommissioned. The phaseout is completed in 2006 when
    vessels twenty-five years of age or older with a single hull, or thirty
    years old or older with double bottoms or double sides, must have a
    double hull to transport oil in the United States.
        The same five-year differentiation between single hulls and double
    bottoms and double sides applies to vessels of greater than or equal to
    15,000 gross tons but less than 30,000 gross tons. This phaseout begins
    in 1995 with forty-year old vessels and ends in 2005 with twenty-five
    year old vessels. For vessels of 30,000 gross tons and over, the
    phaseout begins in 1995 for vessels at least twenty-eight years old,
    and ends on January 1, 2000, with vessels twenty-three years old. In
    any case, after January 1, 2010, a vessel with a single hull, and after
    January 1, 2015, a vessel with a double bottom or double sides, may not
    operate in United States waters regardless of age or size.
                              B. Liability Regime
                                 1. In General
        Despite the best laid plans of oil transporters, some spills are
    inevitable. As stated above, the sheer magnitude of the Exxon Valdez
    spill provoked a severe congressional backlash against oil companies
    and their associated marine transporters. The Exxon Valdez spill also
    created great sympathy for those harmed by the spill, and a desire for
    retribution for the damage done to the once pristine Prince William
    Sound. Given these emotions, Congress basically threw out the liability
    regime in section 311 of the Clean Water Act as it related to oil
    spills,\112\ and authored a new, freestanding regime. This
    housecleaning also created an opportunity to unify the various Federal
    oil spill laws.
    ---------------------------------------------------------------------------
        \112\ Clean Water Act section 311 continues to apply to discharges
    of hazardous substances.
    ---------------------------------------------------------------------------
        Title I of the OPA establishes liability for discharges of
    oil,\113\ as well as threats of discharges, from any source, including
    United States and foreign flag vessels, onshore and offshore
    facilities,\114\ pipelines, and deepwater ports.\115\ The geographic
    scope of liability for a discharge is also extended to the full extent
    of United States maritime jurisdiction--the 200-mile Exclusive Economic
    Zone.\116\ This means that discharges beyond the twelve-mile contiguous
    zone no longer must affect United States natural resources before
    liability attaches;\117\ the mere fact of the discharge triggers the
    application of the statute. Of course, liability for harm to natural
    resources of the United States continues unchanged under the Act as to
    geographic scope.\118\
    ---------------------------------------------------------------------------
        \113\ ``Oil'' is now defined to exclude constituent portions of oil
    specifically listed as a hazardous substance under the Comprehensive
    Environmental Response, Compensation, and Liability Act. OPA
    Sec. 1001(23), 33 U.S.C.A. Sec. 2701(23) (West Supp. 1991).
        \114\ ``Facility'' is defined in the OPA to include any structure
    used to explore, drill, produce, store, handle, transfer, process, or
    transport oil. OPA Sec. 1001(9), 33 U.S.C.A. Sec. 2701(9) (West Supp.
    1991). Therefore, an oil delivery truck which topples off an elevated
    highway into a U.S. waterway and discharges oil would be captured by
    the OPA.
        \115\ OPA Sec. 1001(32), 33 U.S.C.A. Sec. 2701(32) (West Supp.
    1991).
        \116\ This area is defined in the Oil Pollution Act to include the
    ``eastern special areas'' negotiated between the U.S. and the U.S.S.R.
    in June of 1990. OPA Sec. 1001(8), 33 U.S.C.A. Sec. 2701(8) (West Supp.
    1991).
        \117\ See supra notes 5-11 and accompanying text.
        \118\ The OPA liability provisions do not apply to disclose covered
    by a government-issued permit, from a public vessel, or from an onshore
    facility subject to the Trans-Alaska Pipeline Authorization Act. OPA
    Sec. 1002(c), 33 U.S.C.A. Sec. 2702(c) (West Supp. 1991). However, once
    oil from the Trans-Alaska pipeline is transferred to a vessel, Oil
    Pollution Act coverage is engaged.
    ---------------------------------------------------------------------------
        Although the standard of liability is not explicitly defined by the
    OPA, the Act instructs that the terms ``liable'' or ``liability'' are
    to be construed to be ``the standard of liability which obtains under
    section 311 of the Clean Water Act.'' \119\ Some might wonder why the
    authors of the legislation retreated from a position taken by the House
    of Representative's predecessor bill to the OPA, where liability was
    clearly delineated as ``joint, strict, and several.'' \120\ On its
    face, the standard of liability in the OPA appears to be a lesser one.
    However, the Conference Report which accompanies the Act states that
    the Clean Water Act liability standard has been determined repeatedly
    to be strict, joint, and several.\121\ Reluctance to clearly state this
    critical element is curious, given the opportunity to clarify this
    point and the strong anti-Big Oil, pro-environment stance evident
    throughout the OPA.
    ---------------------------------------------------------------------------
        \119\ OPA Sec. 1001(17), 33 U.S.C.A. Sec. 2701(17) (West Supp.
    1991). This standard is reinforced by taking definitions of key terms
    under the Oil Pollution Act, such as ``owner or operator,'' ``liable,''
    ``onshore facility,'' ``offshore facility,'' ``public vessel,'' and
    ``vessel'' verbatim from the Clean Water Act. H.R. Rep. No. 653, supra
    note 57, at 101-02.
        \120\ H. R 1165, 101st Cong., 1st Sess. Sec. 102, 135 Cong. Rec.
    HB124 (daily ed. Nov. 8, 1989).
        \121\ H.R. Rep. No. 653, supra note 57, at 102.
    ---------------------------------------------------------------------------
        Liability runs to the ''responsible party' for a vessel or
    facility, a term defined generally to mean owner or operator,\122\ with
    minor exceptions for governmental entities which own facilities but
    which lease them to others. Because ``responsible party'' is defined to
    include corporations, liability potentially could extend to
    shareholders or corporate officers. Such liability has been found in
    several incidents involving hazardous waste under CERCLA.\123\ On the
    other hand, Federal employees are specifically shielded from liability
    for acts or omissions occurring while the employee is acting in an
    official capacity.\124\
    ---------------------------------------------------------------------------
        \122\ OPA Sec. 1001(32), 33 U.S.C.A. Sec. 2701(32) (West Supp.
    1991). The House of Representatives predecessor bill to the OPA
    included a provision apportioning liability between the owner and
    operator of a spilling vessel, and the owner of the oil carried as
    cargo aboard the vessel. H.R. 1466, 101st Cong., 1st Sess.
    Sec. 1004(b), 135 Cong. Rec. H8124 (daily ed. Nov. 8, 1989). The intent
    behind this provision was to ensure that oil companies would select the
    most prudent carriers to transport. their oil if the threat of shared
    liability in the event of a spill were present. This provision was
    dropped despite predictions that the greater liability risk inherent in
    the Oil Pollution Act would cause a proliferation of shell oil
    transportation corporations, whose only asset is a single tanker.
        \123\ United States v. Northeastern Pharmaceutical and Chem. Co.,
    810 F.2d 726 (8th Cir. 1986); United States v. Conservation Chem. Co.,
    628 F. Supp. 391 (W.D. Mo. 1985); New York v. Shore Realty Corp,, 759
    F.2d 1082 (2d Cir. 1985).
        \124\ OPA Sec. 1018(d), 33 U.S.C.A. Sec. 2718(d) (West Supp. 1991).
    This provision could also protect a Federal employee, such as a Federal
    On-Scene Coordinator or a U.S. Coast Guard Vessel Traffic Service
    System operator, from a third-party defense claim.
    ---------------------------------------------------------------------------
        The OPA does not prohibit agreements to insure or hold harmless any
    person for liability under the Act. However, these agreements do not
    affect the attachment of liability under the OPA to a responsible
    party.\125\ For example, a contract purporting to transfer
    responsibility for the safe transport of oil from an otherwise
    responsible party under the OPA to a third party will not relieve the
    responsible party from liability for removal costs and damages under
    the OPA. However, the agreement or contract may affect subrogation or
    other rights between the contracting parties.
    ---------------------------------------------------------------------------
        \125\ OPA Sec. 1010, 88 U.S.C.A. Sec. 2710 (West Supp. 1991).
    ---------------------------------------------------------------------------
        The OPA did not alter existing law regarding parallel liability
    schemes for oil discharges under state law. Over twenty-four states
    have oil-specific liability schemes which authorize a cause of action
    for oil discharges in state waters.\126\ This double layer of liability
    is an area of potential confusion which remains unresolved.\127\
    ---------------------------------------------------------------------------
        \126\ Costello and Gurevitz, supra note 47, at 49.
        \127\ See discussion on preemption of state laws, infra notes 243-
    52 and accompanying text.
    ---------------------------------------------------------------------------
             2. Removal Costs and Damages Compensable Under the OPA
        The responsible party must pay removal costs and damages specified
    in section 1002(b) of the OPA to claimants.\128\ Two types of removal
    costs are compensable under the Act: (1) removal costs incurred by a
    governmental entity\129\ under subsections 311(c), (d), (e), or (l) of
    the Clean Water Act, as amended by the OPA, under the Intervention on
    the High Seas Act,\130\ or under state law;\131\ and (2) removal costs
    incurred by any other person consistent with the NCP.\132\ These
    categories of costs which may be recovered under the OPA are greatly
    expanded from those originally provided in Clean Water Act section 311.
    For the first time, removal costs are not restricted to those incurred
    by the Federal government. Private parties are afforded protection
    under the OPA for their cleanup costs, as long as their actions are
    consistent with the NCP. Moreover, United States, state, or Indian
    tribe removal costs which are consistent with both the NCP and state
    law must be paid by a responsible party under the OPA Under the
    previous Clean Water Act regime, liability to nonfederal parties could
    be based only on a showing of fault.
    ---------------------------------------------------------------------------
        \128\ 33 U.S.C.A. Sec. 2702(a) (West Supp. 1991). Additionally, the
    responsible party is liable for interest for any claims paid under the
    OPA, ns calculated under section 1005 of the OPA, 83 U.S.C.A. Sec. 2705
    (West Supp. 1991). Claimants may include foreign governments and other
    foreign claimants under certain conditions. OPASec. 1007, 33 U.S.C.A.
    Sec. 2707 (West. Supp.1991).
        \129\ This includes a state government or an Indian tribe.
        \130\ 33 U.S.C. Sec. Sec. 1471-1487 (1988).
        \131\ OPASec. 1002(b)(1)(A), 33 U.S.C.A. Sec. 2702(b)(1)(A) (West
    Supp. 1991).
        \132\ OPA Sec. 1002(b)(1)(B), 33 U.S.C.A. Sec. 2702(b)(1)(B) (West
    Supp. 1991).
    ---------------------------------------------------------------------------
        In addition to removal costs, monetary damages can be collected
    from a responsible party under the OPA These are:

      (1)  damages to natural resources (including assessment costs)
            recoverable by a government trustee;

      (2)  damages for injury ID real or personal property (including
            economic losses resulting from the injury) recoverable by the
            owner or lessee of the property;

      (3)  damages for loss of subsistence use of natural resources
            (ownership of resource not required);

      (4)  damages equal to the loss of revenues caused by the destruction
            of property or natural resources recoverable by a government
            entity;

      (5)  damages equal to lost profits or earning capacity because of
            injury to property or natural resources (ownership of property
            or resource not required); and

      (6)  damages for net costs of providing increased public services
            during or after removal activities recoverable by a state or
            local government.\133\
    ---------------------------------------------------------------------------
        \133\ OPA Sec. 1002(b)(2), 33 U.S.C.A. Sec. 2702(b)(2) (West Supp.
    1991).

        The expanded realm of allowable monetary damages is obvious and is
    likely to be most troubling to the oil industry, given the possibility,
    however small, of another spill as disastrous as the Exxon Valdez. The
    most apparent change is that the OPA deletes a limitation which had
    previously existed under case law requiring that the claimant show
    physical damage to a proprietary interest before economic damage could
    be awarded.\134\ This is readily seen in the authorization of damages
    for loss of profits or earning capacity, which may be had by anyone,
    not just the owners of the damaged property. The allowance for costs of
    increased public services can also be seen as a direct result of the
    experience with the Exxon Valdez. The small and isolated City of
    Valdez, Alaska, was overwhelmed with cleanup workers and the press, and
    city services such as fire department protection. water, and sewage,
    were severely strained.\135\ Of course this provision, having no
    retroactive effect, cannot now benefit Valdez.
    ---------------------------------------------------------------------------
        \134\ H.R. Rep. No. 653, supra note 57, at 108. See also Louisiana
    ex. rel. Guste v. M/V Testbank, 752 F.2d 1019 (5th Cir. 1985).
        \135\ Ability Hearing, supra note 19, at 33.
    ---------------------------------------------------------------------------
        In addition, an innocuous ``notwithstanding any other provision or
    rule of law'' clause at the beginning of OPA section 1002\136\ means
    that financial limits for harm posed by the 189 year-old Limited
    Liability Act,\137\ which restricts claims against vessel owners to the
    value of the vessel and cargo involved, does not apply to actions
    brought under the OPA.\138\ The OPA also abrogates the application of
    this law to states.\139\ This will have a significant impact on oil
    tanker owners and their insurance providers, especially in waters where
    the state has no limits of liability for oil spills\140\ or allows
    recovery of a broader range of removal costs or damages.\141\
    ---------------------------------------------------------------------------
        \136\ 33 U.S.C.A. Sec. 2702(a) (West Supp. 1991).
        \137\ 46 U.S.C. app. Sec. Sec. 181-189 (1988).
        \138\ Section 1004 of the OPA, S3 U.S.C.A. Sec. 2704 (West Supp.
    1991), does limit a vessel's liability.
        \139\ OPA Sec. 1018(a), 33 U.S.C.A. Sec. 2718(a) (West Supp. 1991).
    See, e.g., In re Harbor Towing Corp., 335 F. Supp. 1160 (D. Md. 1971).
        \140\ Seventeen states have no limits of liability for oil spills.
    Oil Spill Liability Before the Subcomm. on Coast Guard and Navigation
    of the House Comm. on Merchant Marine and Fisheries, 99th Cong., 1st
    Sess. 173, 233 (1985).
        \141\ How any list could be broader is doubtful.
    ---------------------------------------------------------------------------
                            3. Defenses to Liability
        Despite the broadened scope of liability created by the OPA, the
    oil industry has not been left without a defense. Congress provided a
    complete defense to liability in the OPA if the responsible party
    proves by a preponderance of evidence that the discharge or threat of
    discharge was caused solely by: (1) an act of God; (2) an act of war;
    (3) an act or omission of a third party other than an employee, agent,
    or contractee of the responsible party; or (4) any combination of
    these.\142\ Further, the third party defense is made contingent upon
    the responsible party being able to prove, by a preponderance of the
    evidence, that he or she exercised due care regarding the nature of the
    oil discharged and took precautions against foreseeable acts or
    omissions of the third party.\143\
    ---------------------------------------------------------------------------
        \142\ OPA Sec. 1003(a), 33 U.S.C.A. Sec. 2703(a) (West Supp. 1991).
    An exception is created in the law for contracts involving the
    transportation of oil provided by a common carrier--a boon for railroad
    companies.
        \143\ Id. It should be recognized that the OPA's third party
    defense is essentially identical to that found in CERCLA for
    potentially responsible persons involved in the release of a hazardous
    substance. 42 U.S.C. Sec. 9607(b)(3) (1988). Therefore, the case law
    defining the applicability and limitations of the CERCLA third party
    defense should be instructive in the context of the OPA. Importantly,
    that case law points out the difficulty in raising an effective third
    party defense. See, e.g., United States v. Monsanto Co., 858 F.2d 160
    (4th Cir. 1988).
    ---------------------------------------------------------------------------
        These defenses are in many ways much more circumscribed than those
    found in section 311 of the Clean Water Act. The OPA raises the burden
    of proof for proving a defense and deletes a defense afforded for the
    negligence of the United States Government.\144\ More importantly, the
    Act greatly restricts the third party defense by decreasing the class
    of third parties whose actions may provide a defense, and by requiring
    the exercise of due care in the selection and control of the actions of
    a third party. On the one hand, it is reasonable to question the
    fairness of imposing liability on the owner of an oil barge when the
    towing vessel is at fault, merely due to the existence of a contract
    between the two. On the other hand, the defense restrictions may induce
    the selection of a competent towing company. Additionally, a barge
    owner could protect against an unfair result by placing an
    indemnification clause in the contract to ensure that the towing
    company ultimately pays for its error.
    ---------------------------------------------------------------------------
        \144\ Some have suggested that the third party defense retained
    under the OPA would include government actions. H.R. 1465 Hearing,
    supra note 20, at 189.
    ---------------------------------------------------------------------------
        If an alleged responsible party is successful in claiming a third
    party defense, the third party becomes the responsible party for
    purposes of the OPA The third party would then be allowed to use the
    claims and defenses available to the original responsible party,
    including limits of liability.\145\ Assertion of an eventually
    successful third party defense does not immediately relieve the
    original responsible party of her burden, however, because even if she
    alleges that a third party caused the oil spill, she must still pay the
    removal costs and damages up front for the incident. The original
    responsible party would then be entitled to subrogation for those
    claims against the third party or the Federal Oil Spill Liability Trust
    Fund, if necessary.\146\
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        \145\ OPA Sec. 1002(d), 33 U.S.C.A. Sec. 2702(d) (West Supp. 1991).
        \146\ OPA Sec. 1008, 33 U.S.C.A. Sec. 2708 (West Supp. 1991). This
    is another provision reflecting sympathy toward those harmed by a spill
    by allowing Caster compensation from an identified source rather than
    delaying payment until the issue of liability has been settled.
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        Responsible parties also void any defense under the OPA if they
    fail to report a known reportable spill, to cooperate and assist
    responsible officials in removal actions, or to comply with an order
    issued under subsections 311(c) or (e) of the Clean Water Act as
    amended by the OPA, or under the Intervention on the High Seas
    Act.\147\ These actions can also result m fines and imprisonment under
    the OPA and Clean Water Act.\148\ On the other hand, responsible
    parties are not liable to claimants to the extent that those claimants
    are grossly negligent or engage in willful misconduct.\149\ This
    represents an elevated comparative negligence standard, but it will not
    protect the pocketbook of the responsible party from merely negligent
    claimants.
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        \147\ OPA Sec. 1003(c), 33 U.S.C.A. Sec. 2703(c) (West Supp. 1991).
        \148\OPA Sec. 4301(a), 33 U.S.C.A. Sec. 1321(b)(5) (West Supp.
    1991). See discussion on increased penalties, infra, notes 205-22 and
    accompanying text.
        \149\ OPA Sec. 1003(b), 33 U.S.C.A. Sec. 2703(b) (West Supp. 1991).
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                   4. Federal Oil Spill Liability Trust Fund
        While the responsible party is monetarily liable for the harm
    caused by a spill, there is another source of money which is also
    available to pay necessary expenses in some circumstances. The Federal
    Oil Spill Liability Trust Fund (Federal Fund), is available to pay for
    oil-spill related costs when the spiller cannot be identified, when the
    spiller can successfully defend against a charge of liability, when the
    spiller can invoke liability limits and claims exceed those limits,
    when the spiller is not subject to United States jurisdiction (a
    foreign spiller), or when a spiller is insolvent or otherwise cannot
    make good on its obligations under the OPA.\150\
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        \150\ OPA Sec. 9001, 26 U.S.C.A. Sec. 9509 (West Supp. 1990). Prior
    to the OPA, liability expenses were funded through several separate
    sources. These sources have been consolidated by the OPA. See infra.
    notes 151-57 and accompanying text.
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        The Federal Fund, as amended by the OPA, is capitalized through
    several sources: (1) a five-cent per barrel tax on oil;\151\ (2) excess
    natural resource damages recovered by trustees under section 1006(0 of
    the OPA;\152\ (3) amounts recovered by the Fund through subrogation
    under section 1015 of the OPA;\153\ (4) amounts transferred to the Fund
    from the Clean Water Act section 31l(k) Fund, the Deepwater Port
    Liability Fund,\154\ the Offshore Oil Pollution Compensation Fund,\155\
    and the Trans-Alaska Pipeline Liability Fund;\156\ and (5) penalties
    collected under sections 311 and 309(c) of the Clean Water Act, the
    Deepwater Port Act of 1974, and section 207 of the Trans-Alaska
    Pipeline Authorization Act.\157\
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        \151\ Omnibus Budget Reconciliation Act of 1989 Sec. 7505(b), 26
    U.S.C.A. Sec. 4611(c)(2)(B) (West Supp. 1991) (triggering collection of
    this tax).
        \152\ 33 U.S.C.A. Sec. 2706(f) (West Supp. 1991).
        \153\ 33 U.S.C.A. Sec. 2715 (West Supp. 1991).
        \154\ This Fund was established under section 18(f) of the
    Deepwater Port Act of 1974, 33 U.S.C. Sec. 1517(f) (1988), repealed by
    OPA Sec. 2003, 33 U.S.C.A. Sec. Sec. 1503, 1617 (West Supp. 1991), 26
    U.S.C.A. Sec. 9506 note (West Supp. 1991).
        \155\ This fund was established under section 302 of the Outer
    Continental Shelf Lands Act Amendments of 1978, 43 U.S.C.
    Sec. 1812(1988), repealed by OPA Sec. 2004, 26 U.S.C.A. Sec. 9509 note
    (West Supp. 1991).
        \156\ This fund was established by section 204 of the Trans-Alaska
    Pipeline Authorization Act, 43 U.S.C. Sec. 1653(c) (1988).
        \157\ These provisions were also amended in Title II of the Oil
    Pollution Act. OPA Sec. 4304, 26 U.S.C.A. Sec. 9509(b)(8) (West Supp.
    1991).
    ---------------------------------------------------------------------------
        Payments from the Federal Fund are restricted in several ways.
    First, a $1 billion per incident cap is established, and of this $1
    billion, no more than $500 million can be paid for natural resource
    damages.\158\ Additional borrowing authority is authorized for $1
    billion. Although this is a significant increase over amounts
    authorized by the section 311(k) fund in existence before passage of
    the OPA, even this would not cover the obligations incurred by Exxon
    for the Exxon Valdez oil spill.\159\ Perhaps this reflects Congress'
    understanding that most spills are small and will not require enormous
    Federal backing for removal of the oil and damages. In addition, the
    Federal Fund is truly a secondary source of funding behind a
    responsible party.
    ---------------------------------------------------------------------------
        \158\ OPA Sec. 900l(c), 26 U.S.C.A. Sec. 9509(c)(2) (West Supp.
    1991).
        \159\ Exxon has spent over $2 billion in cleanup costs related to
    the Exxon Valdez oil spill. Telephone interview with Otto Harrison,
    General Manager of Alaska Operations, Exxon Corp. (Nov. 27, 1990).
    Additionally, Exxon agreed to a $1.2 billion dollar settlement to cover
    civil and criminal penalties. DeBenedicts, Oil-Spill Settlement Okayed,
    A.B.A.J., Dec. 1991, at 31.
    ---------------------------------------------------------------------------
        Under section 1012 of the OPA,\160\ the Fund is available,
    generally subject to appropriation by Congress,\161\ to the President
    for:
    ---------------------------------------------------------------------------
        \160\ 33 U.S.C.A. Sec. 2712 (West Supp. 1991).
        \161\ Up to $50 million is available without appropriation each
    year as an immediately accessible emergency fund to cover Federal oil
    spill removal actions and to begin natural resource damage assessments.
    OPA Sec. 6002, 33 U.S.C.A. Sec. 2752 (West, Supp. 1991).

      (1)  the payment of removal costs consistent with the NCP incurred by
    ---------------------------------------------------------------------------
            Federal authorities;

      (2)  the payment of up to $250,000 to a state for removal costs
            consistent with the NCP for the immediate response to a
            discharge or threat of a discharge;\162\
    ---------------------------------------------------------------------------
        \162\ Eligibility for the emergency monies is contingent on the
    state entering into an agreement with the Federal government under
    section 1012(d) of the OPA. This represents a retreat from a position
    taken by the House of Representatives in its predecessor bill which
    gave states ``direct draw'' access to the Federal Fund for emergency
    removal actions. H.R. 1465, 101st Cong., 1st Sess. Sec. 1012(a), 135
    Cong. Rec. H8126 (daily ed. Nov. 8, 1989).

      (3)  the payment of costs incurred by a natural resource trustee
    ---------------------------------------------------------------------------
            consistent with the NCP;

      (4)  the payment of removal costs consistent with the NCP as the
            result of a discharge from a foreign offshore source;

      (5)  the payment of uncompensated claims for removal costs determined
            by the President to be consistent with the NCP;\163\
    ---------------------------------------------------------------------------
        \163\ No appropriation is needed for these costs.

      (6)  the payment of otherwise uncompensated damages;\164\
    ---------------------------------------------------------------------------
        \164\ No appropriation is needed for these damages.

      (7)  the payment of Federal administrative, operational, and
            personnel costs reasonably necessary for the implementation of
            the OPA;\165\
    ---------------------------------------------------------------------------
        \165\ This is further limited to $25 million per year to the U.S.
    Coast Guard, $30 million per year to establish the National Response
    System under Clean Water Act section 311(j), and $27.250 million per
    year for research under Title VII of the OPA.

      (8)  expenses authorized under sections 5 and 7 of the Intervention
    ---------------------------------------------------------------------------
            on the High Seas Act;

      (9)  the payment of costs necessary for carrying out subsections
            311(b), (c), (d), (j), and (l) of the Clean Water Act; and

      (10)  payment of liabilities incurred by other Federal oil spill
            trust funds.

        This section makes clear that the Federal Fund is open to much more
    limited claims than those to which a responsible party is subject.
    Consequently, states are likely to bear a greater portion of the costs.
    For example, a responsible party is open to claims made for removal
    costs incurred by a state consistent with state law. If the responsible
    party cannot or will not pay these costs, the state would be limited to
    Federal Fund reimbursement of $250,000 for emergency removal actions
    plus only those nonemergency removal expenses which are consistent with
    the NCP. Of course, a state could use its own resources to respond to a
    spill. Responsible parties who erroneously paid or overpaid claims for
    removal costs and damages can also seek compensation from the Fund
    under section 1008 of the OPA.\166\
    ---------------------------------------------------------------------------
        \166\ 33 U.S.C.A. Sec. 2708 (West Supp. 1991).
    ---------------------------------------------------------------------------
        The provision allowing for the payment of otherwise uncompensated
    damages from the Federal Fund would seem to allow open-ended claims.
    ``Damages,'' however, is defined in the OPA to include only natural
    resource damages, harm to real or personal property, loss of
    subsistence use, net loss of revenues, loss of profits, and net costs
    of public services. This means that although a claimant may be entitled
    to payment under state law for damages, unless the claim falls within
    the definition of damages under the OPA, the claimant will not be paid
    from the Federal Fund. On the other hand, it is hard to imagine any
    category of damages which would not fall within the OPA's broad
    definition of damages.
        Similar to a responsible party, the Federal Fund can limit its
    liability for removal costs or damages by demonstrating that the
    claimant was grossly negligent or otherwise engaged in willful
    misconduct.\167\ Once payment is made by the Fund to a claimant, the
    Fund is subrogated to the rights of the claimant and may sue
    responsible parties or others for the recovery of sums paid.\168\ The
    statute of limitations for filing Fund claims is six years from
    completion of removal actions for removal costs, and three years from
    discovery of injury for damages.\169\ In addition, the OPA prohibits
    double recovery for removal costs and damages from the Fund.\170\
    ---------------------------------------------------------------------------
        \167\ OPA Sec. 1012(b), 33 U.S.C.A. Sec. 2712(b) (West Supp. 1991).
        \168\ OPA Sec. 1012(f), 33 U.S.C.A. Sec. 2712(f) (West Supp. 1991).
        \169\ OPA Sec. 1012(h), 33 U.S.C.A. Sec. 2712(h) (West Supp. 1991).
    This statute of limitations for Federal Fund claims must be
    differentiated from that allowed for the filing of actions under the
    OPA. Section 1017(f)(1) and (2) of the OPA, 33 U.S.C.A.
    Sec. 2717(f)(1)-(2) (West Supp. 1991), allows only three years to file
    an action for both damages and removal costs. This means that a Federal
    Fund administrative claim for removal costs could be filed three years
    after the statute of limitations tolled for filing an action in court
    under the Oil Pollution Act to collect removal costs.
        \170\ OPA Sec. 1012(i), 38 U.S.C.A. Sec. 2712(i) (West Supp. 1991).
    ---------------------------------------------------------------------------
                             5. How Clean is Clean?
        A major issue decided by the House-Senate oil spill Conferees was
    the extent to which officials of states affected by an oil spill would
    be involved in the decision by Federal authorities to end oil spill
    removal operations. Section 106(d) of the Senate predecessor bill to
    the OPA \171\ required the President to consult with affected states on
    the appropriate oil spill removal action to be taken. Under the Senate
    provision, the removal action was to be considered complete when so
    determined by the President and the governor or governors of the
    affected states.\172\
    ---------------------------------------------------------------------------
        \171\ S. 686, 101st Cong., 1st Sess., 135 Cong. Rec. S10,412 (daily
    ed. Aug. 15, 1989).
        \172\ H.R. Rep. No. 653, supra note 57, at 111.
    ---------------------------------------------------------------------------
        Section 1011 of the House predecessor bill to the OPA \173\
    required the President to consult with a natural resource trustee on
    the appropriate removal action to be taken. Under this approach,
    removal actions were considered to be complete when determined by the
    President in consultation with the affected governor or governors.
    Although this provision did not give states a veto over the decision of
    the President to end removal actions, the House approach allowed
    additional removal actions under state law to continue. The OPA adopted
    the House approach, but with the clarification that additional removal
    actions undertaken by states under state law may not be supported by
    the Federal Fund.\174\
    ---------------------------------------------------------------------------
        \173\ H.R. 1465, 101st Cong., 1st Sess., 135 Cong. Rec. H8126
    (daily ed. Nov. 8, 1989).
        \174\ OPA Sec. 1012(i), 33 U.S.C.A. Sec. 2712(i) (West Supp. 1991).
    H.R. Rep. No. 653, supra note 57, at 111-112.
    ---------------------------------------------------------------------------
                                   6. Claims
        An elaborate claims procedure is provided by sections 1013 and 1014
    of the OPA.\175\ First, the President is to identify the responsible
    party for the oil discharge (or threat of discharge) and notify the
    responsible party and the party's guarantor of the designation. The
    responsible party then has fifteen days to advertise a procedure for
    paying claims. If the identified responsible party fails to advertise
    its procedures, the President will then determine and announce the
    procedures for the responsible party. The President will advertise the
    availability of the Federal Fund to pay claims if the responsible party
    and the party's guarantor both deny culpability within five days of
    receiving a notice of designation, if the spiller is a public vessel,
    or if the spiller cannot be identified.\176\
    ---------------------------------------------------------------------------
        \175\ 33 U.S.C.A. Sec. Sec. 2713-2714 (West Supp. 1991).
        \176\ OPA Sec. 1014(c), 33 U.S.C.A. Sec. 2714(c) (West Supp. 1991).
    ---------------------------------------------------------------------------
        Claims must first be presented to the responsible party unless the
    President advertises the availability of the Federal Fund, the
    responsible party is presenting a claim,\177\ or for claimants filing
    due to a discharge or threat of discharge from a foreign offshore
    facility. If a claim is not settled by a responsible party within
    ninety days of presentation or advertisement (whichever is later), the
    claimant may either pursue his or her case in court or look to the
    Federal Fund for compensation.\178\ No claims may be paid by the
    Federal Fund while a court is considering the same claim.
    ---------------------------------------------------------------------------
        \177\ Such a claim would be filed, for example, if the responsible
    party first compensated a claimant, and later successfully argued a
    defense or a limit of liability.
        \178\ This is yet another example where speedy compensation is
    provided to those harmed by a spill.
    ---------------------------------------------------------------------------
                             7. Limits of Liability
        Notwithstanding the broad statutory exposure for removal costs and
    damages, and the limited opportunity to evoke a complete defense to
    liability, responsible parties may still be able to invoke liability
    limits for costs and damages under section 1004 of the OPA.\179\
    However, the OPA establishes much higher liability limits than those
    which previously applied under section 311 of the Clean Water Act. The
    new limits are the greater of $1,200 per gross ton or $10 million for
    tank vessels greater than 3,000 gross tons, $1,200 per gross ton or $2
    million for tank vessels 8000 gross tons or less, and $600 per gross
    ton or $500,000 for other vessels. For offshore facilities, liability
    is limited to $75 million plus all removal costs.\180\ For onshore
    facilities and deepwater ports, the limit is $350 million. The OPA
    allows certain liability limits to be adjusted downward. This is true
    for classes of onshore facilities,\181\ and deepwater ports and the
    vessels calling on them.\182\ All liability limits are to be adjusted
    at least once every three years to reflect changes in the Consumer
    Price Index.\183\
    ---------------------------------------------------------------------------
        \179\ 33 U.S.C.A. Sec. 2704 (West Supp. 1991).
        \180\ The Oil Pollution Act applies a special rule for mobile
    offshore drilling units. OPA Sec. 1004(a), 33 U.S.C.A. Sec. 2704(a)
    (West Supp. 1991).
        \181\ Liability limits for onshore facilities may be reduced from
    $350 million to as low as $8 million, taking into consideration size,
    oil throughput, history of spills, type of oil handled, among other
    factors. OPA Sec. 1004(d)(1), 33 U.S.C.A. Sec. 2704(d)(1) (West Supp.
    1991).
        \182\ The Secretary of Transportation must first conduct a study to
    determine if the risk of a spill is lessened by the use of these
    deepwater ports, which are located far offshore. If the Secretary finds
    that the use of deepwater ports results in a lower operational or
    environmental risk, the Secretary must set liability limits between $50
    and $350 million. OPA Sec. 1004(d)(2), 33 U.S.C.A. Sec. 2704(d)(2)
    (West Supp. 1991).
        \183\ OPA Sec. 1004(d)(4), 33 U.S.C.A. Sec. 2704(d)(4) (West Supp.
    1991).
    ---------------------------------------------------------------------------
        While extending these liability limits in subsection 1004(a), the
    OPA retracts them in certain instances in section 1004(c).\184\ Limits
    of liability may be breached by gross negligence or willful misconduct
    on the part of the responsible party (or the party's agent, employee,
    or contractee) which proximately causes the oil spill. The previous
    Clean Water Act liability regime required that the gross negligence or
    willful misconduct must have been within the ``privity or knowledge''
    \185\ of the responsible party;\186\ this requirement was deleted in
    the OPA.\187\ The removal of this condition may have broad-reaching
    impacts for entities which arrange for the transportation of oil.
    Additionally, the OPA's use of the term ``gross negligence'' rather
    than the willful negligence standard of the Clean Water Act may lower
    the negligence standard required before liability limits can be
    breached. However, some commentators have indicated that there is no
    practical difference between the two standards.\188\
    ---------------------------------------------------------------------------
        \184\ 33 U.S.C.A. Sec. 2704(c) (West Supp. 1991).
        \185\ [P]rivity or knowledge of the fault which occasioned damages
    . . . must be actual and not merely constructive, and must involve a
    personal participation of the owner in some fault or act of negligence
    causing or contributing to the injury suffered. The words import actual
    knowledge of the things causing or contributing to the loss, or
    knowledge or means of knowledge of a condition of things likely to
    produce or contribute to the loss without adopting proper means to
    prevent it. Black's Law Dictionary 1080 (5th ed. 1979).
        \186\ 33 U.S.C. Sec. 1321(g) (1988).
        \187\ OPA Sec. 1002(d), 33 U.S.C.A. Sec. 2702(d) (West Supp. 1991).
        \188\ Black's Law Dictionary 1034 (6th ed. 1990).
    ---------------------------------------------------------------------------
        The issue of simple versus gross negligence was one of the most
    hotly-contested battles during consideration of the predecessor bill to
    the OPA in the House of Representatives. The bill presented to the
    House had a gross negligence standard. During consideration of the
    bill, an amendment was offered that would have imposed simple
    negligence as the standard for voiding liability limits.\189\ During
    debate on the amendment, one Member inquired, ``Why after the Exxon
    Valdez should the Congress give the oil and shipping industries a
    reward for acting carelessly and unreasonably?'' \190\ This question
    may be seen as a reflection of the great anger toward the entire oil
    industry, not just Exxon, after the Exxon Valdez.\191\ The proponents
    of the simple negligence standard argued that many states' oil spill
    laws had unlimited liability which had not disrupted the transportation
    of oil in those waters. In addition, there was some fear that claims
    would go unpaid if a spill caused catastrophic damage.
    ---------------------------------------------------------------------------
        \189\ 135 Cong. Rec. H8157-65 (daily ed. Nov. 8, 1989).
        \190\ Id. at H8157.
        \191\ Some felt that environmentalists were determined to make the
    Oil Pollution Act the ``Oil Punishment Act.'' Wall Street Journal, Oct.
    10, 1989, at A18, col. 1.
    ---------------------------------------------------------------------------
        The opponents of the simple negligence standard argued that the
    gross negligence and willful misconduct standard is applied in other
    environmental laws, such as CERCLA, the Clean Water Act, and the Outer
    Continental Shelf Lands Act. They questioned why the OPA should have a
    significantly different standard. More importantly, it was argued,
    applying a simple negligence standard would effectively ensure that no
    operator would ever be able to limit liability, since almost every oil
    spill is caused by some level of negligence.\192\ The amendment also
    ignored that even in the event a responsible party is able to invoke
    the liability limits, claimants would still be paid for their losses
    from the Federal Fund, primarily funded from truces on oil companies.
    Finally, maritime interests noted that they would be unable to obtain
    insurance to operate oil tankers and barges without some type of
    reasonable cap on liability. Despite these arguments, initially, the
    simple negligence standard was adopted, 213 to 207.\193\
    ---------------------------------------------------------------------------
        \192\ 135 Cong. Rec. H8160 (daily ed. Nov. 8, 1989) (statement of
    Congressman Billy Tauzin).
        \193\ 135 Cong. Rec. H8165 (daily ed. Nov. 8, 1989).
    ---------------------------------------------------------------------------
        The day after the amendment passed, a separate vote was requested
    on the amendment in a parliamentary maneuver that permits the House to
    vote again on amendments previously adopted.\194\ This time, the simple
    negligence standard was defeated by a vote of 197-185. This change of
    heart can be attributed to both intense lobbying--by the White House,
    the oil and shipping industries, and certain senior House members--and
    the fact that some members of Congress had left town for the weekend.
    ---------------------------------------------------------------------------
        \194\ 135 Cong. Rec. H8286 (daily ed. Nov. 9, 1989).
    ---------------------------------------------------------------------------
        Liability limits are also breached by a violation of an applicable
    federal safety, construction, or operating regulation by the
    responsible party (or the party's agent, employee, or contracted) which
    proximately causes the oil spill.\195\ This would mean, of course, that
    violation of a vessel operating standard such as the failure to carry a
    sufficient number of life preservers would not automatically breach a
    liability limit, as this type of violation would not likely be the
    proximate cause of a spill. On the other hand, failure by a vessel to
    have sufficiently trained personnel, where such inexperience leads to
    the grounding of the vessel and a subsequent release of oil, could
    trigger this exception. Limits of liability can also be revoked for
    failure to report a known reportable spill or failure to cooperate with
    responsible officials during a removal action.\196\ A special rule
    applies to vessels carrying oil as cargo from an OCS facility.
    Responsible parties for these vessels are liable for all removal costs
    incurred by government entities despite limits on liability and the
    existence of defenses.\197\ Of course, as noted above, the responsible
    party for an OCS facility is also liable for all removal costs incurred
    by a government entity without limitation.
    ---------------------------------------------------------------------------
        \195\ OPA Sec. 1004(c)(1)(B), 33 U.S.C.A. Sec. 2704(c)(1)(B) (West
    Supp. 1991).
        \196\ OPA Sec. 1004(c)(2)(B), 88 U.S.C.A. Sec. 2704(c)(2)(B) (West
    Supp. 1991).
        \197\ OPA Sec. 1004(c)(3), 33 U.S.C.A. Sec. 2704(c)(3) (West Supp.
    1991).
    ---------------------------------------------------------------------------
                          8. Financial Responsibility
        Section 1016 of the OPA sets out financial responsibility
    requirements under the OPA.\198\ Such requirements ensure that a
    potential spiller is able to meet financial liability limits. Evidence
    of financial responsibility can be supplied by proof of insurance,
    surety bond, guarantee, letter of credit, or qualification as a self-
    insurer.\199\ Vessels affected by this requirement are those over 300
    gross tons (except barges not carrying oil as cargo or fuel) using any
    place subject to the jurisdiction of the United States or any vessels
    using the waters of the United States Exclusive Economic Zone to
    transship or lighter oil destined for a place subject to the
    jurisdiction of the United States.\200\ If a person is a responsible
    party for more than one vessel, only evidence of financial
    responsibility to meet the greatest potential liability from the
    largest vessel is required.\201\ Failure to provide evidence of
    financial responsibility can result in seizure and forfeiture of the
    vessel, denial of entry to United States ports or navigable waters,
    detention of the vessel, or refusal of clearance to leave a United
    States port by the Secretary of the Treasury under section 91 of the
    Appendix to Title 46.\202\
    ---------------------------------------------------------------------------
        \198\ 33 U.S.C.A. Sec. 2716 (West Supp. 1991).
        \199\ OPA Sec. 1016(e), 33 U.S.C.A. Sec. 2716(e) (West Supp. 1991).
        \200\ OPA Sec. 1016(a)-(2), 33 U.S.C.A. Sec. 2716(a)(1)-(2) (West
    Supp. 1991). Public vessels are not affected by this provision.
        \201\ Id. There is a drafting distinction in the Oil Pollution Act
    in how financial responsibility requirements are met for offshore
    facilities and deepwater ports. In these cases ``each'' lessee,
    permittee, or licensee is required to have evidence of financial
    responsibility to the limits of liability. However, logic would dictate
    that these facilities should be treated on a par with vessels and
    onshore facilities, so that in cases where there are multiple
    potentially responsible parties for a single facility, only one need
    supply evidence of financial responsibility up to the greatest
    liability limits.
        \202\ OPA Sec. 1016(b), 33 U.S.C.A. Sec. 2716(b) (West Supp. 1991).
    ---------------------------------------------------------------------------
        Section 1016(c) establishes the requirements for financial
    responsibility for offshore facilities. Financial responsibility of
    $150 million is required for offshore facilities, except where the
    President has reduced limits of liability for deepwater ports. In that
    case, evidence of financial responsibility for the lower limit would be
    required.
        Where financial responsibility has been supplied through insurance
    or other guarantee by a person other than the responsible party, a
    claimant may assert a claim directly against the guarantor or
    insurer.\203\ Guarantors or insurers may then avail themselves of all
    rights and defenses otherwise applicable to the responsible party or
    can avoid payment by successfully proving that the oil discharge was
    caused by the gross negligence or willful misconduct of the responsible
    party.\204\
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        \203\ OPA Sec. 1016(e), 33 U.S.C.A. Sec. 2716(e) (West Supp. 1991).
    However, in no case may a guarantor or insurer be liable for more than
    the amount of the guarantee or insurance. Id.
        \204\ OPA Sec. 1016(f), 33 U.S.C.A. Sec. 2716(f) (West Supp. 1991).
    ---------------------------------------------------------------------------
                                  9. Penalties
        Subtitle C of title IV of the OPA contains the penalty provisions
    for violations of the OPA and other related statutes. In all cases
    penalties are substantially increased, driven, as most other sections
    of the OPA are, by a desire not to appear soft on polluters. The hope
    that draconian penalties might lead to more careful behavior on the
    part of oil transporters and thus prevent more oil spills is another
    aim of subtitle C, although its effectiveness is questionable given the
    already enormous potential liability for cleanup costs and monetary
    damages.
        Section 4301 of the OPA \205\ amends section 311(b) of the Clean
    Water Act to increase penalties and prison terms for violations of that
    law. A person who fails to notify the appropriate Federal official of a
    discharge will now be subject to a fine of not more than $250,000 for
    an individual and not more than $500,000 for an organization,
    imprisonment of not more than three years, or both. Prison sentences of
    five years are authorized in the case of subsequent convictions.\206\
    ---------------------------------------------------------------------------
        \205\ 33 U.S.C.A. Sec. 1321(b) (West Supp. 1991).
        \206\ OPA Sec. 4801(a), 33 U.S.C.A. Sec. 1321(b)(5) (West Supp.
    1991). The previous penalty under this section was a maximum $10,000
    fine, or one year in prison, or both. 33 U.S.C. Sec. 1321(b)(5) (1988).
    ---------------------------------------------------------------------------
        For discharges of oil, failure to comply with Tank Vessel and
    Facility Response Plans, or failure to comply with orders of the
    President, the OPA greatly increases administrative, civil, and
    criminal penalties. Administrative penalty authority is now available
    to both the Coast Guard and EPA. Administrative penalties for a
    discharge and for violations of contingency plan requirements are
    increased from $5,000 to $10,000 for each offense, with a $25,000
    maximum for a class I penalty.\207\ The OPA also creates a new class II
    administrative penalty category. A class II offender may be fined
    $10,000 per day of violation, with a $125,000 maximum.
    ---------------------------------------------------------------------------
        \207\ Penalty classes are based on the severity of the offense.
    ---------------------------------------------------------------------------
        Before enactment of the OPA, the Clean Water Act had given the
    Administrator of EPA authority to commence a civil action against a
    person subject to the administrative penalties under that Act.\208\ The
    Administrator considered certain factors in deciding whether to
    commence a civil action.\209\ The penalty in such cases was limited to
    $50,000; evidence of ``willful negligence or willful misconduct within
    the privity and knowledge of the owner, operator, or person in
    charge,'' however, allowed for a maximum penalty of $250,000.
    ---------------------------------------------------------------------------
        \208\ 33 U.S.C. Sec. 1821(b)(6)(B) (1988).
        \209\ Id. The Administrator was to take into account the ``gravity
    of the offense, and the standard of care manifested by the owner,
    operator, or person in charge.'' Id. In addition, the Administrator
    considered the size of the business of the owner or operator, the
    effect. on the ability of the owner or operator to continue in
    business, the gravity of the violation, and the nature, extent, and
    degree of success of any efforts made by the owner, operator, or person
    in charge to minimize or mitigate the effects of such discharge. Id.
    ---------------------------------------------------------------------------
        The OPA amends the Clean Water Act to make civil penalty assessment
    authority available to both EPA and the Coast Guard.\210\ These
    penalties are increased to up to $25,000 per day of violation or up to
    $1,000 per barrel of oil discharged.\211\ Failure to properly remove
    the oil or to comply with an order exposes a violator to a penalty of
    up to $25,000 per day of violation or an amount equal to three times
    the costs the Federal Fund incurs as a result of those failures.\212\
    Gross negligence or willful misconduct may subject the violator to a
    civil penalty of not less than $100,000 and not more than $3,000 per
    barrel of oil.\213\
    ---------------------------------------------------------------------------
        \210\ OPA Sec. 4301(b), 33 U.S.C.A. Sec. 132l(b)(7) (West Supp.
    1991).
        \211\ Id. The $1,000 penalty also applies to each unit of hazardous
    substance discharged.
        \212\ OPA Sec. 480l(b), 33 U.S.C.A. Sec. 1321(b)(7)(B) (West Supp.
    1991).
        \213\ OPA Sec. 4301(b), 33 U.S.C.A. Sec. 1321(b)(7)(D) (West Supp.
    1991). If a person has been assessed an ``administrative'' civil
    penalty under 33 U.S.C. Sec. 1321(b)(6), that person would not be
    subject to a penalty under 33 U.S.C. Sec. 1S21(b)(7). OPA Sec. 4301(b),
    33 U.S.C.A. Sec. 1321(b)(7)(F) (West Supp. 1991). In addition, the OPA
    provides that penalties under section 311 may not be imposed if
    penalties have been imposed under section 809(c) for the same
    discharge. OPA Sec. 4301(b), 33 U.S.C.A. Sec. 1321(b)(11) (West Supp.
    1991).
    ---------------------------------------------------------------------------
        The criminal penalties imposed under Clean Water Act section 309(c)
    are extended to include violations of section 311(b)(3) for a discharge
    of oil.\214\ The penalties for negligent violations include fines of
    not less than $2,500 nor more than $25,000 per day of violation,
    imprisonment for not more than one year, or both.\215\ For a violation
    committed after a first conviction, a person may be liable for not more
    than $50,000 per day of violation, imprisonment of not more than two
    years, or both. The penalties for knowing violations include fines of
    not less than $5,000 nor more than $50,000 per day of violation,
    imprisonment for not more than three years, or both.\216\ Subsequent
    convictions could mean a fine of not more than $100,000 per day,
    imprisonment of not more than six years, or both. Finally, for knowing
    endangerment, the penalties include a fine of not more than $250,000,
    imprisonment of not more than fifteen years, or both.\217\ An
    organization could be subject to a fine of not more than $1 million.
    For a subsequent conviction, the maximum fine or imprisonment could be
    doubled.
    ---------------------------------------------------------------------------
        \214\ OPA Sec. 4301(b), 33 U.S.C.A. Sec. 1321(c) (West Supp. 1991).
        \215\ 33 U.S.C.A. Sec. 1319(c)(1) (West Supp. 1991).
        \216\ Id. Sec. 1319(c)(2).
        \217\ Id. Sec. 1319(c)(3).
    ---------------------------------------------------------------------------
        Penalties are also established for failure to comply with the
    financial responsibility requirements pursuant to section 1016 of the
    OPA.\218\ The President may impose a civil penalty of not more than
    $25,000 per day of violation. In determining the amount of the penalty,
    various factors may be considered, such as the circumstances, nature,
    and gravity of the incident, prior violations, and ability to pay. In
    addition, the Attorney General may compel compliance with the
    requirements for financial responsibility by issuing an order to
    terminate operations.
    ---------------------------------------------------------------------------
        \218\ OPA Sec. Sec. 1016, 4303, 33 U.S.C.A. Sec. Sec. 2716, 2716a
    (West Supp. 1991).
    ---------------------------------------------------------------------------
        Finally, numerous other penalties are covered in OPA section
    4302.\219\ Among other things, the penalties are increased for
    negligent operation of a vessel,\220\ negligent pilotage,\221\ and for
    violations of the Ports and Waterways Safety Act.\222\
    ---------------------------------------------------------------------------
        \219\ OPA Sec. 4302 (codified as amended in scattered sections of
    33 U.S.C.A. and 46 U.S.C.A.).
        \220\ 46 U.S.C.A. Sec. 230'2 (West Supp. 1991).
        \221\ 46 U.S.C.A. Sec. 8502 (West Supp. 1991).
        \222\ 33 U.S.C.A. Sec. 1232 (West Supp. 1991).
    ---------------------------------------------------------------------------
                          10. Natural Resource Damages
        The OPA offers much greater detail than previously existed
    regarding the authority of a designated governmental trustee to collect
    for harm done to natural resources belonging to, are managed by,
    controlled by, or appertaining to the United States. . . .'' \223\ This
    authorization for monetary damages is in addition to that allowed for
    economic damages suffered by private parties for harm to those
    resources.\224\ Under pre-existing Clean Water Act section 311(f)(5),
    only Federal and state trustees could bring an action for natural
    resource damages, The OPA expands the list of those who can recover for
    such damages to include Indian tribes and foreign governments.\225\ The
    OPA delineates the duties of the trustee to include assessment of harm
    and development of a plan to restore, rehabilitate, or replace the
    damaged resource.\226\
    ---------------------------------------------------------------------------
        \223\ OPA Sec. 1006(a), 83 U.S.C.A. Sec. 2706(a) (West Supp. 1991).
        \224\ H.R. Rep. No. 663, supra note 57, at 108.
        \225\ OPA Sec. 1006(a)(3)-(4), 33 U.S.C.A. Sec. 2706(a)(3)-(4)
    (West Supp. 1991).
        \226\ OPA Sec. 1006(c)(1)-(4), 33 U.S.C.A. Sec. 2706(c)(1)-(4)
    (West Supp. 1991). The availability of money from the Federal Fund to
    repair natural resources must be in accordance with this plan. However,
    when emergency action is necessary, this requirement is waived. OPA
    Sec. 1012(j), 33 U.S.C.A. Sec. 2712(j) (West Supp. 1991). Federal
    trustees may also conduct damage assessments for other trustees on a
    reimbursable basis. OPA Sec. 1006(c)(1)(B), 33 U.S.C.A.
    Sec. 2706(c)(1)(B) (West Supp. 1991).
    ---------------------------------------------------------------------------
        The most important change to this area of the law is the
    formulation of how harm to a natural resource is measured. Under
    previous regulations for conducting natural resource damage
    assessments, the measure of damage is the lesser of the diminution of
    use of the resource or its replacement cost.\227\ This standard was
    successfully challenged by several states in Ohio v. United States
    Department of the Interior.\228\
    ---------------------------------------------------------------------------
        \227\ 40 C.F.R. pt. 11 (1990). These regulations apply to harm
    caused by oil spills under the Clean Water Act and releases of
    hazardous substances under the Comprehensive Environmental Response,
    Compensation, and Liability Act.
        \228\ 880 F.2d 432 (D.C. Cir. 1989).
    ---------------------------------------------------------------------------
        The new measure of damage provided in the OPA reflects the standard
    adopted by the court in Ohio: the cost of restoration, rehabilitation,
    or replacement plus the diminution in value of the resources pending
    restoration.\229\ The costs of assessing the harm to those resources is
    also added to this total to ensure that natural resource damage cases
    do not fail merely because assessment monies are unavailable.\230\ New
    regulations implementing this standard are to be promulgated by the
    National Oceanic and Atmospheric Administration, in consultation with
    the heads of affected Federal agencies.\231\ As under previous law\232\
    calculations of harm by trustees using these new regulations are
    afforded a rebuttable presumption of correctness in any administrative
    or judicial proceeding brought under the OPA.\233\
    ---------------------------------------------------------------------------
        \229\ OPA Sec. 1006(d)(1), 33 U.S.C.A. Sec. 2706(d)(1) (West Supp.
    1991).
        \230\ Id.
        \231\ This change reflects congressional dissatisfaction with the
    Department of the Interior, which promulgated the first set of damage
    assessment regulations.
        \232\ 43 C.F.R. Sec. 11.10 (1990).
        \233\ OPA Sec. 1006(e)(2), 33 U.S.C.A. Sec. 2706(e)(2) (West Supp.
    1991).
    ---------------------------------------------------------------------------
        Sums recovered by trustees under this section are to be retained by
    the trustee to pay costs incurred in performance of the trustee's
    duties under the OPA.\234\ Any amounts in excess of this are to be
    deposited in the Federal Fund.\235\ The OPA also provides a limited
    citizens' suit provision which allows suits to be brought against
    federal officials for failure to carry out nondiscretionary
    duties.\236\ The Congressional Conference Report for the OPA states
    that the citizens' suit provision is not intended to ``expand or
    diminish rights existing under current law.'' \237\ Since general
    authority to compel Federal officials to take nondiscretionary duties
    already exists under section 1361 of title 28, United States Code, it
    appears that the provision is superfluous. In any case, it appears that
    citizens can seek to require the promulgation of damage assessment
    regulations under section 1006(g) of the OPA. However, its effect on
    forcing a trustee to bring a lawsuit for harm to a resource is
    unclear.\238\
    ---------------------------------------------------------------------------
        \234\ A similar scheme is outlined in section 107(f) of the
    Comprehensive Environmental Response, Compensation and Liability Act,
    42 U.S.C. Sec. 9607(f) (1988). However, recoveries made under that
    authority have been deposited in the United States Treasury and not
    used to restore or replace harmed natural resources. By specifically
    authorizing the retention of the recovered sums by the trustee and
    exempting these sums from appropriation, the use of these monies to
    restore natural resources is guaranteed.
        \235\ OPA Sec. l006(f), 33 U.S.C.A. Sec. 2706(f) (West Supp. 1991).
        \236\ OPA Sec. 1006(g), 33 U.S.C.A. Sec. 2706(g) (West Supp. 1991).
        \237\ H.R. Rep. No. 663, supra note 57, at 109-110.
        \238\ Some courts have held that pursuit of a legal action is a
    discretionary duty, not subject to citizen suit actions. City of
    Seabrook v. Costle, 659 F.2d 1371 (5th Cir. 1981); Sierra Club v.
    Train, 557 F.2d485 (5th Cir. 1977); Committee for the Consideration of
    Jones Falls Sewage Sys. v. Train, 539 F.2d 1006 (4th Cir. 1976). But
    see South Carolina Wildlife Fed'n v. Alexander, 457 F. Supp. 118
    (D.S.C. 1978); Illinois ex rel. Scott v. Hoffman, 425 F. Supp. 71 (S.D.
    Ill. 1977); Wisconsin's Envtl. Decade, Inc. v. Wisconsin Power & Light
    Co., 395 F. Supp. 313 (W.D. Wis. 1975).
    ---------------------------------------------------------------------------
                           11. Jurisdiction and Venue
        Review of regulations promulgated under the OPA may be filed in the
    District of Columbia Circuit Court of Appeals within ninety days of the
    date of promulgation.\239\ No collateral challenges to these
    regulations are allowed. All other controversies under the OPA may be
    adjudicated in an appropriate United States district court.\240\ The
    OPA also establishes statutes of limitation for filing actions for
    removal costs and damages under the Act, as well as for contribution
    and subrogation actions.\241\ In addition, state courts of competent
    jurisdiction to hear cases over removal cost and damage claims (as
    defined in the OPA), may consider claims under the OPA or state
    law.\242\
    ---------------------------------------------------------------------------
        \239\ OPA Sec. 1017(a), 33 U.S.C.A. Sec. 2717(a) (West Supp. 1991).
        \240\ OPA Sec. 1017(b), 33 U.S.C.A. Sec. 2717(b) (West Supp. 1991).
        \241\ OPA Sec. 1017(f), 33 U.S.C.A. Sec. 2717(f) (West Supp. 1991).
    See discussion, supra note 169, regarding conflict of this section with
    statute of limitations for filing claims for removal costs against the
    Federal Fund.
        \242\ OPA Sec. 1017(c), 33 U.S.C.A. Sec. 2717(c) (West Supp. 1991).
    ---------------------------------------------------------------------------
                          12. Preemption of State Laws
        The jurisdiction under the OPA of state courts to hear claims for
    removal costs and damages is not surprising, as the OPA explicitly does
    not preempt state law in the area of oil spill liability and
    compensation This issue has been one which divided the Houses of
    Congress and is generally the one identified as stalling passage of a
    comprehensive oil spill liability regime for over fifteen years.\243\
    State liability laws were preempted in each of the House of
    Representative's oil spill bills introduced since the mid-1970s.\244\
    Preemption of state law was thought to assure certainty and uniformity
    of oil spill laws, thereby guaranteeing that oil would continue to be
    transported while those harmed by a spill would be compensated.
    However, this view was not shared by the Senate. The Senate argued that
    the existing regime should be allowed to continue--each state should be
    allowed to establish its own liability and compensation laws,
    particularly, imposition of unlimited liability.
    ---------------------------------------------------------------------------
        \243\ Jones, supra note 8, at 10,333.
        \244\ H.R. 14862, 94th Cong., 2d Sess. (1976).
    ---------------------------------------------------------------------------
        The House predecessor bill to the OPA, H.R. 1465, stopped short of
    total preemption of state law in an attempt by the House authors to
    compromise early with the Senate on this issue. The version of H.R.
    1465 considered on the House floor provided that actions arising out of
    discharges of oil from a vessel or facility had to be brought under the
    Federal regime, including recovery of removal costs and damages. It
    specifically exempted actions for wrongful death and personal injury,
    which could be brought under state law. The House bill did not preclude
    a state from continuing or establishing an oil spill compensation fund
    or from requiring any person to contribute to that fund. However, if
    the state fund was capitalized by a tax or fee imposed on the same
    persons who were contributing to the Federal Fund, the state fund was
    barred from compensating any claimant for damages under the OPA. H.R.
    1465 also did not preempt a state from exacting fines or penalties for
    an oil spill.\245\
    ---------------------------------------------------------------------------
        \245\ H.R. 1465, 101st Cong., 1st Sess. Sec. Sec. 1018, 1019, 135
    Cong. Rec. H8128 (daily ed. Nov. 8, 1989).
    ---------------------------------------------------------------------------
        The House had passed oil spill bills preempting states from
    imposing their own liability regime with little opposition since
    1977.\246\ However, here again, the significance of the Exxon Valdez
    can clearly be seen. Members of the House previously in support of
    preemption changed their position, while others who had not been active
    in the legislation took a strong interest in the bill.\247\
    ---------------------------------------------------------------------------
        \246\ H.R. 6803, 95th Cong., 1st Sess. (1977) (passed by a vote of
    332-59 on September 12, 1977).
        \247\ For example, one of the sponsors of an early House oil spill
    bill which contained complete preemption language, H.R. 6803, 95th
    Cong., 1st Sess. (1977), later led the fight for no preemption during
    debate on H.R. 1465. See 135 Cong. Rec. H8128-8156 (daily ed. Nov. 8,
    1989).
    ---------------------------------------------------------------------------
        During the House debate on this issue, several lines of argument
    were drawn. Proponents of preemption argued that a nationally uniform
    comprehensive oil spill liability regime was needed to ensure
    protection of United States waters and shores while allowing for
    economical and environmentally-safe transportation of oil. Oil
    transporters would not be faced with differing requirements each time
    they crossed state boundaries; in turn, they would be subject to the
    highest standard of liability under Federal law. In addition, a billion
    dollar Federal Fund would be available to ensure that all those who
    suffered from an oil spill would be fully compensated. Opponents of
    preemption argued that states are in the best position to protect their
    own shores and waters from an oil spill. They also pointed out that
    most other environmental laws allowed for more restrictive state
    regulation, and that states may wish to pursue other categories of
    removal costs and damages other than those provided under federal law.
        After this divisive debate pitting environmentalists and states
    righters against supporters of the oil and maritime industry and
    Federal activists, H.R. 1465 passed the House with almost all
    preemption language deleted.\248\ Section 1018 of the OPA \249\ makes
    clear that states may impose additional requirements regarding oil
    spill liability, removal activities, penalties and fines, and state oil
    spill trust funds. In addition, the Federal Limited Liability Act is
    also made inapplicable to the states. Neither the OPA nor the Limited
    Liability Act preempts the authority of any state from imposing
    additional liability or requirements regarding the discharge of oil or
    removal activities connected with a spill.
    ---------------------------------------------------------------------------
        \248\ 135 Cong. Rec. H8128-8156 (daily ed. Nov. 8, 1989).
        \249\ 33 U.S.C.A. Sec. 2718 (West Supp. 1991).
    ---------------------------------------------------------------------------
        Although it is fairly easy to understand that state liability and
    compensation laws are not preempted by the OPA, in other areas related
    to oil spill incidents, the line is harder to draw. Some House
    Conferees were particularly concerned that the OPA not be interpreted
    to expand the authority of states over areas traditionally reserved to
    the Federal government. While attempts were made during negotiations to
    include language that specified what areas were preempted and what
    areas were not, the Senate was leery of doing so. The only concession
    the Senate would make on this point was to include language in the
    Congressional Conference Report stating that the OPA does not disturb
    the Supreme Court decision in Ray v. Atlantic Richfield Company.\250\
    In Ray, the State of Washington had enacted a tanker law that regulated
    the design, size, and movement of oil tankers in Puget Sound, an area
    already subject to Federal law. Consequently, the Court held that
    Federal law preempted Washington's tanker law.\251\
    ---------------------------------------------------------------------------
        \250\ 435 U.S. 151 (1978). See H.R. Rep. No. 653, supra note 57, at
    122.
        \251\ Ray, 435 U.S. 151, 158 (1978).
    ---------------------------------------------------------------------------
        The House Conferees were particularly concerned that states might
    perceive section 1018 as a license to expand their authority with
    regard to vessel construction, manning, licensing, or other matter
    related to oil spill prevention and response, as discussed in Ray. That
    concern now appears to be well founded. In the climate that has existed
    around the country in the wake of the Exxon Valdez incident, states
    have rushed to enact strong oil spill laws which edge into this
    traditional federal arena.\252\
    ---------------------------------------------------------------------------
        \252\ For example, the State of California recently enacted the
    Lempert-Keene Oil Spill Prevention and Response Act, Cal. Gov't. Code
    Sec. 8670.1-.70 (West Supp. 1991). That Act covers many of the areas
    covered by the OPA, including liability, damages, financial
    responsibility, and contingency planning.
    ---------------------------------------------------------------------------
                          IV. 1984 Oil Spill Protocols
                                 A. Background
        During the drafting of the OPA, an issue that received considerable
    debate was that of international agreements dealing with oil spill
    liability. The final section of this paper examines this issue and
    Congress' failure to ratify existing agreements which the United States
    had been instrumental in negotiating. In 1969 and 1971, two
    international instruments covering pollution damage from oil spills
    were negotiated: the 1969 Convention on Civil Liability for Oil
    Pollution Damage (Civil Liability Convention) \253\ and the 1971
    Convention on the Establishment of an International Fund for
    Compensation for Oil Pollution Damage (Fund Convention).\254\ The Civil
    Liability Convention establishes strict liability for a shipowner for
    oil pollution damage, supported by a requirement for insurance to cover
    the potential oil pollution liability of a shipowner. It also
    establishes limits of liability for shipowners for oil pollution
    damage.\255\ The Fund Convention creates an International Oil Pollution
    Compensation Fund (International Fund) to provide supplementary
    compensation to oil spill victims beyond the limits of liability
    established under the Civil Liability Convention.\256\ The Civil
    Liability Convention entered into force in 1975 and the Fund Convention
    entered into force in 1978. As of February 20, 1990, the Civil
    Liability Convention had been ratified by sixty-six countries and the
    Fund Convention by forty-three countries.\257\
    ---------------------------------------------------------------------------
        \253\ Nov. 29, 1969, 973 U.N.T.S. 3.
        \254\ Dec. 18, 1971, 1110 U.N.T.S. 57. See also Director,
    International Oil Pollution Fund, United International Regime of
    Compensation for Oil Spills Established by the 1984 Oil Spill Protocols
    1 (1990) [hereinafter International Regime].
        \255\ Id.
        \256\ Id.
        \257\ Id.
    ---------------------------------------------------------------------------
        In 1984, a Diplomatic Conference was held by the International
    Maritime Organization to revise the Civil Liability Convention and the
    Fund Convention. The most important purpose of the Conference was to
    increase the amounts of compensation available under the two
    conventions.\258\ The Conference adopted an amendment, or protocol, to
    each Convention.\259\ The 1984 Protocol to the Civil Liability
    Convention\260\ will enter into force when it is ratified by 10
    countries, including six countries with total tanker fleets of not less
    than one million units of gross tanker tonnage each. The 1984 Protocol
    to the Fund Convention\261\ will enter into force when ratified by
    eight countries and when at least 600 million tons of contributing oil
    is received in a given year in those countries.\262\ The 1984 Protocol
    to the Civil Liability Convention has been ratified by Australia, the
    Federal Republic of Germany, France, Peru, St. Vincent and Grenadines,
    and South Africa. The Protocol to the Fund Convention has been ratified
    by the Federal Republic of Germany and France.\263\ There is little
    chance that the Protocols will enter into force unless the States
    ratifies them, an event, as will be seen, that appears unlikely.\264\
    ---------------------------------------------------------------------------
        \258\ Id.
        \259\ Id.
        \260\ Protocol to Amend the Convention on Civil Liability for Oil
    Pollution Damage of 1969, May 25, 1984, 23 I.L.N. 177 [hereinafter
    Protocol on Civil Liabilityl.
        \261\ Protocol to the International Convention on the Establishment
    of an International Fund for Compensation for Oil Pollution Damage, May
    25, 1984.
        \262\ International Regime, supra note 254, at 2.
        \263\ Id.
        \264\Id.
    ---------------------------------------------------------------------------
                   B. Explanation of 1984 Oil Spill Protocols
                 1. Protocol to the Civil Liability Convention
        The Protocol to the Civil Liability Convention covers pollution
    damage from spills of ``persistent'' \265\ oil from ships constructed
    or adapted for the carriage of oil in bulk as cargo. The Protocol
    applies exclusively to pollution damage caused in the territory of a
    country party to the Protocol, including its territorial sea and
    exclusive economic zone. The Protocol also applies to preventative
    measures, wherever taken, to prevent or minimize pollution damage in
    the areas covered by the Protocol.\266\
    ---------------------------------------------------------------------------
        \265\ The Civil Liability Convention and its 1984 Protocol apply to
    so called ``persistent'' oils, that is, heavier oils such as heavy
    crude oil, fuel oil, heavy diesel, and lubricating oil, and not to
    lighter oils such as gasoline, jet fuel, and kerosine. Protocol on
    Civil Liability, supra note 260, at art. I,  5.
        \266\ International Regime, supra note 254, at 1.
    ---------------------------------------------------------------------------
        Under the Protocol, the shipowner is strictly liable for pollution
    damage as a result of an oil spill incident caused by his or her ship.
    There is a defense to liability available to a shipowner who proves
    that the pollution damage resulted from an act of war or an exceptional
    natural phenomenon; that the pollution damage was wholly caused by the
    act of a third party with the intent to cause damage; or that the
    damage was wholly caused by the negligence of proper authorities to
    maintain navigational aids.\267\
    ---------------------------------------------------------------------------
        \267\ Id.
    ---------------------------------------------------------------------------
        No claim for pollution damage may be made against the shipowner
    except under the Protocol to the Civil Liability Convention.\268\ The
    Protocol also prohibits claims against the agents of the owner or the
    members of the crew; against the pilot or any other person who performs
    services for the ship; against any charterer, including a bareboat
    charterer,\269\ and any manager or operator of the ship; against any
    person performing salvage operations with the consent of the owner or
    appropriate public authority; against any person taking preventive
    measures; and against all servants or agents of persons exempt from
    paying claims under the Convention. This prohibition of claims against
    these persons applies unless the damage resulted from their personal
    act or omission, committed with the intent to cause the oil pollution
    incident, or recklessly and with knowledge that the oil pollution
    damage would result.\270\ Nothing in the Protocol affects the right of
    recourse of the shipowner against any of these persons, or against any
    other third party.\271\
    ---------------------------------------------------------------------------
        \268\ Protocol on Civil Liability, supra note 260, at art. IV.
        \269\ Id.
        \270\ Id.
        \271\ Id. at para. 5.
    ---------------------------------------------------------------------------
        For each spill incident, the shipowner is entitled to a limit of
    liability which does not exceed 69.7 Special Drawing Rights, a figure
    which translates into approximately $78 million.\272\ However, the
    shipowner is not entitled to limited liability in cases in which the
    pollution damage resulted from the personal acts or omissions of the
    shipowner committed with the intent to cause the damage, or recklessly
    with knowledge that the damage would result.\273\ The Protocol contains
    an expedited procedure to amend the limits of liability for shipowners
    contained in the Civil Liability Convention.\274\
    ---------------------------------------------------------------------------
        \272\ Id. at art. V, para. 1. The limits of liability for a
    shipowner are: (1) for a ship less than 5,000 gross tons, three million
    Special Drawing Rights (approximately $8.9 million U.S.); (2) for a
    ship of at least 5,000 but less than 140,000 gross tons, three million
    Special Drawing Rights plus 420 Special Drawing Rights (approximately
    $550 U.S.) for each additional ton; and (3) for a ship of 140,000 gross
    tons or more, 69.7 million Special Drawing Rights (approximately $78
    million U.S.).
        \273\ Protocol on Civil Liability, supra note 260, at art. V, para.
    2.
        \274\ International Regime, supra. note 254, at 2.
    ---------------------------------------------------------------------------
        The owner of a ship registered in a country that is a party to the
    Protocol and that carries more than 2,000 tons of oil as cargo is
    required to maintain evidence of financial responsibility sufficient to
    cover its liability up to the limit established by the Protocol.\275\
    Actions for compensation against the shipowner and the shipowner's
    insurer may only be brought in the courts of the country where the
    pollution damage occurred. Any judgment rendered in a country party to
    the Protocol is enforceable in any other country party to the
    Protocol.\276\
    ---------------------------------------------------------------------------
        \275\ Id. at 1.
        \276\ Id. at 2.
    ---------------------------------------------------------------------------
                       2. Protocol to the Fund Convention
        The 1984 Protocol to the Fund Convention establishes an
    International Fund to provide compensation for pollution damage if: (1)
    the owner of the ship causing the oil pollution has a defense to
    liability under the Civil Liability Convention; (2) the shipowner is
    financially incapable of meeting its obligations under the Civil
    Liability Convention, and the shipowners financial security is
    insufficient to satisfy the claims for compensation for the damage; or
    (3) the damage exceeds the shipowner's limits of liability under the
    Civil Liability Convention.\277\ The maximum amount of compensation
    available from the International Fund for each oil pollution incident
    is 200 million Special Drawing Rights, approximately $260 million,
    including amounts payable by the shipowner under the Protocol to the
    Civil Liability Convention.\278\
    ---------------------------------------------------------------------------
        \277\ Id.
        \278\ Id.
    ---------------------------------------------------------------------------
        The International Fund is supported by contributions from any
    person in a member country who has received over 150,000 tons of crude
    oil or heavy oil that was carried by sea in a calendar year. Individual
    contributors are required to pay contributions to the International
    Fund based upon the amount of oil received. The governments of member
    countries have no responsibility for these contributions, unless they
    accept this responsibility.\279\
    ---------------------------------------------------------------------------
        \279\ International Regime, supra note 254, at 3.
    ---------------------------------------------------------------------------
              C. Conference Debate on the 1984 Oil Spill Protocols
        Title IIIof the House predecessor bill to the OPA contained
    implementing legislation for the 1984 Protocols.\280\ The Senate
    predecessor bill to the OPA did not.\281\ The House-Senate Conference
    Committee to resolve the differences between the oil spill bills twice
    debated the merits of including implementing legislation for the 1984
    Protocols in the OPA. Although there were some opponents to the 1984
    Protocols on the Conference Committee from the House of
    Representatives, most of the opposition to the Protocols came from the
    Senate conferees.\282\ The opposition arguments and concerns can be
    grouped into four major categories:
    ---------------------------------------------------------------------------
        \280\ H.R 1465, 101st Cong., 1st Sess., tit. III, 136 Cong. Rec.
    H8247 (daily ed. Nov. 9, 1989).
        \281\ S. 686, 101st Cong., 1st Sess., 135 Cong. Rec. S10,406 (daily
    ed. Aug. 15, 1989).
        \282\ Minutes of the House-Senate Conference on H.R. 1465, the Oil
    Pollution Act of 1990, 32 (Apr. 25, 1990) [hereinafter April 26
    Conference].

      (1)  The role of the Senate should not be bypassed.
         The Protocols should not be implemented by legislation
                until the Senate first ratifies the Protocols.\283\
    ---------------------------------------------------------------------------
        \283\ Id. at 26-27.

      (2)  Compensation Limits of the Protocols would be restrictive.
         The Protocols provide protection to oil spill victims
                only under a limited set of circumstances.\284\
    ---------------------------------------------------------------------------
        \284\ Id at 39.
    ---------------------------------------------------------------------------
         The Protocols preempt state unlimited liability
                laws.\285\
    ---------------------------------------------------------------------------
        \285\ Id. at 40.
    ---------------------------------------------------------------------------
         The Protocols limit compensation to oil spill victims
                to the amounts available from the International Fund and
                the Federal Fund.\286\ Because the amounts paid from the
                International Fund consist of contributions from the
                Federal Fund, United States taxpayers actually bear these
                costs, not the spiller.\287\ Shipowners spilling oil may
                make claims against the International Fund for oil spill
                expenses they incur above their limits of liability, which
                also limits compensation from the International Fund.\288\
    ---------------------------------------------------------------------------
        \286\ Id. at 25.
        \287\ Letter from Senator George J. Mitchell to Congressman Dante
    B. Fascell, Chairman, Foreign Affairs Committee, U.S. House of
    Representatives (Apr. 23, 1990) [hereinafter Mitchell Letter]. Senator
    Mitchell argues that any tax on oil consumed in the United States is
    ultimately paid by the American people. April 26 Conference, supra.
    note 282, at 25.
        \288\ April 25 Conference, supra, note 282, at 25.

      (3)  Other shortcomings of the Protocols should be recognized.
         The standard contained in the Protocols for breaching
                a ship owner's limit of liability is lower than the
                standard contained in the oil spill bills passed by the
                House of Representatives and the Senate, and would preempt
                higher Federal and state standards that make it easier to
                breach limits of liability.\289\
    ---------------------------------------------------------------------------
        \289\ Mitchell Letter, supra note 287, at 4.
    ---------------------------------------------------------------------------
         The third party defense to liability available to
                shipowners under the Protocols is inconsistent with the
                third party defenses contained in the oil spill bills
                passed by the House of Representatives and the Senate, or
                with the defenses under the laws of most states.\290\
    ---------------------------------------------------------------------------
        \290\ Id. at 5.
    ---------------------------------------------------------------------------
         The defense to liability available to shipowners under
                the Protocols for oil pollution damage resulting from the
                negligence of the claimant preempts Federal and state law
                prohibiting defenses of this type, and would require
                Federal and state governments and other claimants to seek
                reimbursement and compensation from the International Fund
                and the Federal Fund.\291\
    ---------------------------------------------------------------------------
        \291\ Id.
    ---------------------------------------------------------------------------
         The Protocols require ``channeling'' of claims for oil
                pollution damage to the shipowner, and prohibit actions
                against other potentially liable persons.\292\
    ---------------------------------------------------------------------------
        \292\ Id. at 6.
    ---------------------------------------------------------------------------
         The Protocols define pollution damage in a way that
                limits liability for natural resource damages.\293\
    ---------------------------------------------------------------------------
        \293\ April 25 Conference, supra note 282, at 28.
    ---------------------------------------------------------------------------
         The Protocols require state court actions to be
                removed to Federal court.\294\
    ---------------------------------------------------------------------------
        \294\ Mitchell Letter, supra note 287, at 9.

      (4)  Renegotiation of the Protocols should be pursued.
         The United States should renegotiate the Protocols to
                accommodate the arguments against their ratification.\295\
    ---------------------------------------------------------------------------
        \295\ Minutes of the House-Senate Conference on Title III of H.R.
    1465, the Oil Pollution Act 19 (June 28, 1990) [hereinafter June 28
    Conference].
    ---------------------------------------------------------------------------
        On the other hand, the supporters of implementing the Protocols in
    the OPA were from the House of Representatives,\296\ and they made the
    following arguments and counterarguments in favor of the Protocols:
    ---------------------------------------------------------------------------
        \296\ Id. at 13.

      (1)  Role of the Senate would not be bypassed.
         There is no requirement that the Senate ratify an
                international agreement before legislation is enacted to
                implement the agreement.\297\
    ---------------------------------------------------------------------------
        \297\ Id. at 8.

      (2)  International nature of oil pollution requires entry into an
            international agreement.
         The most effective oil spill liability and
                compensation system depends on international participation,
                and should represent a united international, federal, and
                state effort.\298\
    ---------------------------------------------------------------------------
        \298\ April 25 Conference, aupra note 282, at 18.

      (3)  Limitations on Federal and state law would be minimal.
         The effect of the Protocols on state law is limited to
                one type of state statute imposing unlimited liability on
                persons responsible for oil spills.\299\
    ---------------------------------------------------------------------------
        \299\ Memorandum from Henry Cohen, Legislative Attorney, American
    Law Division, Congressional Research Service, Library of Congress, to
    the Comm. on Merchant Marine and Fisheries, U.S. House of
    Representatives, on the Extent to Which Title III of the Oil Pollution
    Act of 1989 Would Preempt State Law (Apr. 18, 1990).
    ---------------------------------------------------------------------------
       State unlimited liability laws will not, in reality, provide
            unlimited compensation to victims of oil spills.\300\
    ---------------------------------------------------------------------------
        \300\ June 28 Conference, supra note 295, at 10.
        ``Mr. Studds: Let me emphasize this last point because it's
    important. Some have suggested that only the unlimited liability
    provisions of state laws can guarantee full compensation in the event
    of another Exxon Valdez. This argument is flawed by the fact that most
    lanker operators are not Exxon and would not have the resources needed
    to provide full compensation in a case where damages exceed the billion
    dollars or so that could be recovered from [the] fund.''
        Id. at 5.
    ---------------------------------------------------------------------------
       The greatest weakness in an oil spill system that depends
            exclusively on state and Federal law is its lack of
            enforceability against other sovereigns.\301\
    ---------------------------------------------------------------------------
        \301\ Id. at 10.

      (4)  Compensation of oil spill victims would be maximized under the
            Protocols.
         The most important goal of an oil spill compensation
                system is to deliver prompt and complete compensation to
                victims of oil spills, and the amounts available from the
                International Fund are necessary to provide full and prompt
                compensation to oil spill victims.\302\
    ---------------------------------------------------------------------------
        \302\ April 25 Conference, supra. note 282, at 18; Memorandum from
    Merchant Marine and Fisheries Minority Staff to Republican Oil Spill
    Conference Staff on Answers to Frequently Asked Questions on
    International Oil Spill Protocols 2-3 (Apr. 20, 1990) [hereinafter
    Staff Memo]. ``The International Protocols will ensure that United
    States' citizens are fully and promptly compensated for their losses.
    Since the International Oil Pollution Compensation Fund was established
    in 1979, it has established a reputation for quick settlement of
    claims. The average time period for payment of claims is six months.
    For the average citizen, this process is preferable to a complicated,
    lengthy litigation process. An instructive example for those who argue
    that litigation is superior to administrative settlement of claims
    through the International Fund is the Amoco Cadiz incident. In the
    Amoco Cadiz oil spill, which occurred in France in 1978 before the
    entry into force of the Fund Convention, not a single cent has been
    paid to any claimant. Complicated litigation is still pending in courts
    in the United States, with no resolution in sight.'' Id.
    ---------------------------------------------------------------------------
         The Protocols contain over $260 million to compensate
                oil spill victims and clean up the environment, with the
                potential of nearly $400 million once the United States
                ratifies the Protocols and begins contributing to the
                International Fund.\303\
    ---------------------------------------------------------------------------
        \303\ April 25 Conference, supra note 282, at 18.

      (5)  Accomplishing the goals of the oil spill system are more likely
            to be achieved under the Protocols.
         Under the Protocols, states are free to accomplish all
                of the goals of oil spill compensation, cleanup,
                prevention, and punishment. Some revision of state law
                maybe required, but that is a small price to pay for the
                benefits of an international solution to the problem of oil
                spills.\304\
    ---------------------------------------------------------------------------
        \304\ Id. at 17-18.
    ---------------------------------------------------------------------------
         The best way to punish persons responsible for oil
                spills is directly through civil or criminal penalties.
                Penalties are not affected by the Protocols, and states are
                free to impose civil or criminal penalties against persons
                responsible for oil spills.\305\
    ---------------------------------------------------------------------------
        \305\ Staff Memo, supra note 302, at 1.
    ---------------------------------------------------------------------------
         The best way to prevent or deter oil spills is
                directly through vessel operational requirements monitored
                by Federal and state officials. The Protocols do not affect
                the increased vessel requirements for prevention imposed by
                the oil spill bills passed by the House of Representatives
                and the Senate.\306\
    ---------------------------------------------------------------------------
        \306\ Id. at 5.

      (6)  Misunderstandings surrounding the Protocols should be corrected.
         Many legal scholars have stated that the Protocols
                standard for breaking limits of liability is the same as
                the gross negligence standard provided in the oil spill
                bills passed by the House of Representatives and the
                Senate, thus defusing the argument that the Protocols would
                make it harder to breach limits of liability.\307\
    ---------------------------------------------------------------------------
        \307\ Id. at 4.
    ---------------------------------------------------------------------------
         Natural resource damages are not limited by the
                Protocols, because damages above those paid from the
                International Fund may be compensated from the Federal Fund
                and from state oil spill funds.\308\
    ---------------------------------------------------------------------------
        \308\ Reasons to Support the International Oil Spill Protocols (May
    9, 1990).

      (7)  Clarification of the Protocols is possible.
         Most of the objections raised to the Protocols can be
                overcome in the implementing legislation to harmonize the
                international, federal, and state oil spill systems.\309\
    ---------------------------------------------------------------------------
        \309\ April 25 Conference, supra note 282, at 19-20.

      (8)  Renegotiation of the Protocols is not an option.
         Because of its failure to ratify the Protocols, the
                United States has lost stature with the international
                community. For this reason, renegotiation of the Protocols
                to benefit the United States is not an option.\310\
    ---------------------------------------------------------------------------
        \310\ June 28 Conference, supra note 295, at 7.
    ---------------------------------------------------------------------------
                           D. Final Conference Action
        On June 28, 1990, the House and Senate Conferees met to decide
    whether to implement the Protocols. At this meeting, Congressman Gerry
    Studds of Massachusetts offered a compromise proposal to respond to the
    arguments in opposition to the Protocols. The compromise proposal
    clarified the relationship of the Protocols to Federal and state law,
    and provided for the repeal of the implementing legislation for the
    1984 Protocols within five years if certain amendments to the Protocols
    were not adopted internationally.\311\
    ---------------------------------------------------------------------------
        \311\ Memorandum from Congressman Gerry Studds to House and Senate
    Conferees on Title III of Comprehensive Oil Pollution Legislation (H.R.
    1465/S. 686) 2 (June 25, 1990).
    ---------------------------------------------------------------------------
        The proposal responded to the major arguments cited in opposition
    to the 1984 Oil Spill Protocols. The proposal: (1) clarified that the
    adoption of implementing legislation for the Protocols does not
    constitute a ratification or endorsement of the Protocols; (2)
    clarified that liability limits may be breached under the Protocols if
    an oil spill is caused by the gross negligence or willful misconduct of
    the responsible party; (3) clarified that the Protocols do not preempt
    a claim under any other law for removal costs or damages that are not
    covered by the Protocols; (4) clarified that the Protocols do not
    preempt claims under Federal or state law from the Federal Fund,
    including the measure of damages for natural resource damages, the
    total of removal costs or damages, or the period during which claims
    may be brought for oil spill damages; (5) clarified that the Protocols
    do not preempt a claim against a person who is not the owner of a ship
    or the shipowner's agent; and (6) clarified that the Protocols do not
    preempt the right of Federal or state governments to impose civil or
    criminal penalties for an oil spill.\312\
    ---------------------------------------------------------------------------
        \312\ Id. at 2-3.
    ---------------------------------------------------------------------------
        Finally, the compromise proposal expressed the sense of Congress
    that the President should take steps to denounce the Protocols within
    five years of ratification unless the President finds that United
    States participation in the international oil spill system under the
    Protocols has not undermined Federal and state efforts to prevent and
    provide compensation for oil spills, and that the Protocols have been
    revised to make them comparable to certain provisions of the OPA. The
    last provision of the compromise proposal repealed legislation
    implementing the Protocols after five years, and prohibited the
    President from making payments to the International Fund after that
    date unless the foregoing conditions were satisfied.\313\
    ---------------------------------------------------------------------------
        \313\ Id.
    ---------------------------------------------------------------------------
        During the debate on the proposal, members of the Conference
    Committee from the House of Representatives emphasized that state
    unlimited liability laws cannot guarantee adequate compensation for
    victims of an oil spill. They explained that most oil tanker operators
    do not have the assets of a company like Exxon and would not have the
    resources needed to compensate oil spill claimants following an oil
    spill where damages exceed the billion dollars available from the
    Federal Fund. The supporters of the compromise pointed out that the oil
    transportation industry may simply organize around state unlimited
    liability statutes to protect the assets of their companies from
    bankrupt cy. They observed that state unlimited liability laws
    encourage oil to be transported by one-ship, undercapitalized
    companies.\314\
    ---------------------------------------------------------------------------
        \314\ June 28 Conference, supra note 295, at 5, 9, 10.
    ---------------------------------------------------------------------------
        Another argument stated in favor of the proposal concerned the need
    for international enforceability of judgments of United States courts.
    Without this enforcement authority, billion dollar judgments from state
    or Federal courts against persons responsible for oil spills are
    worthless to oil spill victims.\315\ Finally, the supporters of the
    proposal argued that the Senate position in favor of renegotiation of
    the 1984 Protocols was unrealistic. It was under the Senate's direction
    that the United States had successfully negotiated the 1984 Protocols
    in the first place. The United States was now no longer in a position
    to dictate to other countries on this issue, because of its failure to
    ratify the 1984 Protocols.\316\
    ---------------------------------------------------------------------------
        \315\ Id. at 10.
        \316\ Id. at 7; see also Letter from Senators Robert T. Stafford,
    Jennings Randolph, and John H. Chafee to Rear Admiral Bobby F.
    Hollingsworth, Chief, Office of Marine Environment and Systems, U.S.
    Coast Guard (Apr. 20, 1984).
    ---------------------------------------------------------------------------
        Not surprisingly, the House Conferees voted to accept the
    compromise proposal, and offered it to the Senate Conferees for their
    consideration.\317\ During their debate on the proposal, the Senate
    conferees argued against accepting the proposal on several grounds.
    First, they contended that the proposal would preempt important
    objectives in Federal and state oil spill liability matters; second, it
    would create confusion with respect to American law concerning oil
    spills; third, it would compromise the constitutional role of the
    Senate; and fourth, it would shift exposure for unlimited liability
    from persons responsible for oil spills to the American taxpayer.\318\
    Consequently, the Senate rejected the compromise.\319\
    ---------------------------------------------------------------------------
        \317\ June 28 Conference, supra note 295, at 13.
        \318\ Id. at 14.
        \319\ Id. at 21.
    ---------------------------------------------------------------------------
        The persistent House of Representatives, however, had yet another
    proposal in the wings.\320\ The House Conferees agreed to recede to the
    Senate on the Protocols issue in exchange for the Senate's agreeing to
    another, milder proposal.\321\ The result is OPA section 3001, which
    expresses the sense of Congress ``that it is in the best interests of
    the United States to participate in an international oil pollution . .
    . regime that is at least as effective as Federal and State laws in
    preventing [oil spills] and in guaranteeing full and prompt
    compensation for damages resulting from such incidents.'' \322\
    ---------------------------------------------------------------------------
        \320\ This second proposal was offered by Congressman Jones.
        \321\ June 28 conference, supra note 295, at 22-23, 24.
        \322\ OPA Sec. 3001.
    ---------------------------------------------------------------------------
                     E. Outlook for International Solutions
        Because of the international nature of the oil transportation
    industry, the problem of oil pollution must be addressed
    internationally. The oil pollution compensation, cleanup, prevention,
    and punishment system for the United States will not be complete until
    it includes international participation.
        Recently, the Diplomatic Conference for the Oil Pollution Prepared
    ness and Response Convention was concluded in London, England. While
    most delegations agreed with the United States that the Oil Pollution
    Preparedness and Response Convention was too important to allow the
    failure of the United States to ratify the Protocols to stand in the
    way of the Convention, many delegations and individuals privately
    emphasized that the United States has lost stature internationally
    because of its failure to ratify the 1984 Protocols.\323\
    ---------------------------------------------------------------------------
        \323\ Telephone interview with Daniel F. Sheehan, Technical
    Advisor, Office of Marine Safety, Security, and Environmental
    Protection, U.S. Coast Guard (Dec. 12, 1990).
    ---------------------------------------------------------------------------
        With this reality, the Europeans, with the United Kingdom in the
    lead, are searching for a solution to the international oil spill
    problem, and are considering a number of possibilities. It remains to
    be seen whether the Europeans will propose to renegotiate the 1984
    Protocols, or whether they develop another scheme to address
    international oil pollution. Unfortunately, the United States' failure
    to ratify the Protocols will probably prevent the United States from
    being a leader in the upcoming negotiations.\324\
    ---------------------------------------------------------------------------
        \324\ Id.
    ---------------------------------------------------------------------------
                                 V. Conclusion
        As can be seen by the foregoing lengthy discussion, the Oil
    Pollution Act has made substantial changes in Federal oil spill law.
    The OPA generally reflects an anti-oil industry bias, by raising
    penalties, limiting defenses to liability, providing more and quicker
    compensation for those hurt by a spill, and imposing sometimes onerous
    new prevention and planning requirements on the oil transportation
    industry. It has been over a year since the OPA was signed into law,
    and the reactions to the new requirements of the OPA are varied.
    Representatives of the oil transportation industry threaten to stop
    moving oil through United States ports unless they receive some relief
    from exposure to unlimited liability. Members of environmental groups
    think that the OPA did not go far enough to deter oil transporters from
    spilling oil and to punish responsible persons. The Coast Guard and
    other Federal agencies charged with implementing and administering the
    OPA are struggling with the enormous task of writing regulations to
    give effect to Congress' intent in enacting the OPA. Finally, the
    members of Congress and their staff who developed the Act are watching
    all these developments with interest, but without an incentive to
    reconsider any significant issue decided as part of the OPA.
        Despite the various arguments against certain provisions of the
    OPA, there is little interest in Congress in revisiting the OPA's major
    provisions. The decisions made on the most important issues of the OPA,
    including the preemption of state law, implementation of International
    Oil Spill Protocols, and double hulls for oil tank vessels, were
    extremely difficult to resolve in the Conference on the OPA. There were
    close to eighty members of Congress who were conferees on the OPA with
    divergent views on the issues under consideration. It is our opinion
    that no significant changes will be made to the OPA unless a crisis or
    catastrophe of the proportions of an Exxon Valdez oil spill causes
    Congress to reopen issues decided as part of the OPA. None of us has a
    crystal ball, but we predict that the current ``wait-and-see'' attitude
    of Congress toward the OPA will prevail until events allow us to
    determine the actual effects of the OPA.

        Chair Peters. Thank you, Commissioner Dye.
        Chairman Maffei, as you mentioned, both of you in your
    opening remarks, in June 2022 we saw the Ocean Shipping Reform
    Act signed into law. Those have provided the FMC with
    additional authorities to address international ocean shipping
    transportation-related supply chain challenges, along with
    improved tools to investigate unfair shipping practices, and
    fees, and other charges.
        OSRA also amended the Shipping Act to prohibit
    international ocean carriers from unreasonably denying U.S.
    cargo, and established a certification process for detention
    and demurrage charges to improve transparency and enforcement.
        And Chairman Maffei, I know you talked about that in your
    opening remarks, but perhaps you could provide the committee
    with a little more detailed update as to FMC's progress in
    utilizing these additional authorities and improved tools
    provided by the law, and any other comments related to the law
    that you think is important for this committee to hear?
        Mr. Maffei. Absolutely, Senator Peters. And I, very
    briefly, do want to recognize that Max Vekich, the first
    Commissioner we have ever had from the State of Washington, is
    also actually here today. So we both have Commissioners Sola
    and Vekich in our audience, and I appreciate. And I know
    Commissioner Dye appreciates their support.
        Look, I am a very fortunate person in that when I wake up
    in the morning I don't have to do a to-do list because my to-do
    list was written by the Senate Commerce Committee endorsed by a
    vast bipartisan majority in the Senate, and yes, even the
    House, and signed by the President of the United States.
        OSRA implementation is the top priority of the Commission.
    My top priority within that is now, and particularly now that
    the Detention Demurrage Billing Rule is done, to get the
    mandated rule addressing unreasonable refusal to deal for
    importers, exporters finished. You mentioned the--unreasonably
    denying U.S. cargo, which is clearly now illegal, thanks to the
    Ocean Shipping Reform Act.
        When we started our process of the Act actually mandates
    the refusal to deal part of it, it did not mandate in this
    first rule that we put unreasonable denying of cargo; however,
    when we came out with our first draft, nobody liked it, on
    either side, and we realized, and at least I realized, that we
    needed to also make sure that unreasonably denying cargo was in
    the same rule as not allowing any sort of unreasonable refusal
    to deal.
        We rewrote the rule, we put it back out in a supplemental
    rulemaking, that has taken a little bit longer than I wanted,
    but I think we are going to have a much better result that our
    exporters, whether we are talking about cherries from Michigan,
    or cotton from Texas, are definitely going to like, and I
    expect that to be out in the next few months in final form.
        I have kept in touch with all those groups, by the way, in
    the meantime, and fortunately, because of market forces, it is
    not as urgent as it could have been, but we will make sure that
    is out. In the meantime, by the way, denying U.S. cargo
    unreasonably is illegal, of course, and we can enforce that.
        Look, we are on all cylinders firing on the enforcement and
    consumer stuff, particularly given that that was a major
    priority in OSRA. You mandated that we hire seven people in
    various roles. We hired nine in those roles. We continue to up
    our enforcement efforts. We have hired a senior executive
    service-level person to oversee our enforcement. We have hired
    a--actually even before the bill, but now we--but it
    corresponds with the bill, an export advocate within our
    Consumer Affairs Division, and we continue every day to keep
    the pressures on.
        There are a number of other requirements in OSRA, frankly a
    dozen or more, that we have completed, and I am happy to
    provide you with a list of those in writing, but I don't think
    we need to get into that here.
        Chair Peters. Very good, Chairman Maffei. And as you recall
    from our days serving in the House together, where I believe
    your district included the first port of call into the Great
    Lakes. We cannot forget about the important role that Great
    Lakes shipping always plays in our economy, and I believe that
    part of the solution to preventing the congestion and supply
    chain disruptions that we saw following the pandemic, is to
    make better use of our ports in the Great Lakes.
        Our Great Lakes ports can play a significant role in easing
    congestion at coastal ports, improving the efficient movement
    of freight, and reducing emissions in the process.
        However, in order to achieve these goals, we need to ensure
    that all seaports have equitable access to Federal resources,
    and are also held to the same standards. And that is why I am
    committed to working with our smaller seaports as they work to
    balance security concerns and evolving threats with port
    business operations needed to move that freight.
        My question for you, Chairman Maffei, is: Can you comment
    on the role our Great Lakes ports can play in alleviating
    congestion at these larger ports and through the supply chain?
        Mr. Maffei. Yes, absolutely. I mean I love the question, of
    course, Senator Peters, being from--I think I might be the
    first Chairman that comes from the Great Lakes area of the
    country. I think that it already plays an important role. There
    is a--now, most of Great Lakes shipping is not containerized,
    it is bulk shipping, et cetera, break bulk of liquid fuels, et
    cetera, and there are certain issues there.
        But in terms of container shipping, which is what we
    primarily regulate, there is indeed a container service to the
    Great Lakes. It goes from Antwerp to Cleveland, of course it is
    seasonal. And it has been very, very successful. So successful
    in fact that the Port of Duluth is also considering container
    shipping, and I think also Monroe, Michigan.
        Chair Peters. Um-hmm.
        Mr. Maffei. It is extraordinarily helpful. For instance,
    during the pandemic, a rubber manufacturer in Houston, Texas,
    which found that the Port of Houston, although a fantastic
    port, was basically at its capacity. Ships didn't have any more
    space. So what they did was, in order to get their product to
    Europe, they sent it up to Cleveland and exported it on
    containers out of Cleveland. So indeed, I think an expansion of
    services along the Great Lakes would help the entire country
    because it would add to that ability to diversify the supply.
        Chair Peters. Thank you, Chairman Maffei.
        Ranking Member Cruz, you are recognized for your questions.
        Senator Cruz. Thank you Mr. Chairman. I appreciate it.
    Welcome to both the Commissioners, thank you for being here,
    thank you for your service.
        Last month the FMC held a hearing on the impact of the
    Houthi attacks in the Red Seas, and to hear from stakeholders.
    I would be interested in your telling the Committee, what did
    you learn at that hearing?
        Mr. Maffei. Yes, Senator, I think the biggest thing that I
    learned, and I want to yield to Commissioner Dye, if you will
    allow but--was that there really has been a lack of
    transparency. It is not so much as you mentioned in your
    opening statement. Obviously, carriers faced with the prospect
    of their crews and officers being put at risk, or shouldn't put
    them at risk for a single shipment.
        Nonetheless, when you have a threat to Freedom of the Seas
    and they had to--they do have to go around they do charge more
    because there are additional fees, and it does change the
    market because a ship taking longer will be less available to
    carry other cargos. And they did, they did put in some of these
    fees to compensate for that.
        However, the consumer, the shippers, exporters, and
    importers really had no idea, no way of knowing whether those
    were fair. And so what we have tried to do already is start
    putting through our VOCC Audit Program, asking these questions,
    trying to get answers, and trying to encourage the ocean
    carriers to be more transparent.
        So the transparency was the number one thing, better
    transparency I think would help everybody figure out whether
    they are getting their money's worth.
        Senator Cruz. Commissioner Dye, did you have anything you
    wanted to add to that?
        Ms. Dye. Yes. Thank you, Senator Cruz. The two main costs
    that carriers are incurring are fuel and wear and tear on the
    ships. They also have to acquire additional capacity by
    charter, and significant new tonnage is coming into the
    marketplace as well. Shippers are concerned and suspicious
    about the amount of the surcharges, and we understand that. I
    definitely understand that after having heard the complaints
    and concerns during the steep rise in prices during the
    pandemic.
        It is our responsibility to make sure that those surcharges
    are reasonable, and we, during the hearing, assured the
    shippers that we would do that, and that we are in the process
    now of making sure. As I understand it the rate of increase is
    comparable to what happened during the pandemic, but the actual
    price is short of that, and as the carriers begin to negotiate
    with their contract shippers, then what we hope to see is
    moderation.
        Senator Cruz. So what has the impact been so far to
    American consumers and American businesses of these Houthi
    attacks in the Red Sea?
        Mr. Maffei. Well, the impact, so far, has been relatively
    limited, because even though I mentioned 30 percent of
    containerized traffic, that it is global containerized traffic.
    The U.S. is less of that. It is really the combined effect of
    the Suez situation with the Panama Canal situation that has
    created an issue because of--mostly due to lack of capacity.
    And Fitch estimates that that could lead to approximately four-
    tenths a percent of inflation.
        However, the good news, if you can call it that, is that
    there are a lot of new ships coming online over the next few
    months. During COVID most of these carriers ordered a great
    deal more capacity because they were so short during COVID, and
    those ships will come online.
        I think once that happens, provided we as the Commission do
    what we need to do to preserve the fact that there is
    competition, market competition, that even if the situation in
    the Red Sea continues, the rates will go down. They may not go
    down to where they were last year, but they will decline to a
    more acceptable level.
        Senator Cruz. So one of the things both of you talked about
    in your opening testimony were detention and demurrage fees,
    and as you discussed, during the pandemic some ports applied
    what they call ``dwell fees'' on containers that were not
    picked up in time. Notably, the Port of Los Angeles and Long
    Beach took these fees to the extreme. They started at $100 per
    day, after the ninth day on a terminal, and they increased by
    $100 a day.
        This could lead to an extraordinary sum, $46,000--$46,500
    in just 30 days. Now, if I understood your testimony, as well,
    you both said that you thought detention and demurrage fees
    should be used to actually incentivize the movement of goods.
    Is that correct as to your understanding? And how would the new
    rule that you released operate?
        The Port of Los Angeles and Long Beach have rescinded the
    dwell fees, but if they had stayed in place, how would the new
    rule have impacted those fees?
        Ms. Dye. The fees were not described as demurrage and
    detention fees. But our position was if it walks like, quacks
    like demurrage and detention, it is subject to our rules. And
    all of our shippers, our importers, were under pressure
    because, as we said before, they had ordered an overwhelming
    supply of goods, to respond to the American consumers during
    that time, and did not have anywhere to put it.
        And so the cargo continued to build on the ports, you
    couldn't even move the containers around. Shippers were finding
    other property to store a cargo, and it was a terrible time for
    everybody. Regardless, we made plain to LA that those were not
    reasonable fees under the--under the Incentive Principle. And
    we were pleased that they didn't actually move to collect
    those.
        Senator Cruz. Thank you.
        Chair Peters. Thank you, Ranking Member Cruz.
        So Chairman Maffei, I understand that in 2005 the FMC
    helped the Lake Carriers Association with an investigation
    regarding the Canadian Coast Guard charging U.S. ``Lakers''
    significantly higher harbor service fees than they charged
    Canadian Lakers moving the exact same cargo between the United
    States and Canada.
        I also understand that they have recently asked you to
    proceed with another investigation regarding a transport Canada
    issue. And as I think you know, it is incredibly important that
    American Lakers have the ability to effectively move cargo on
    the Great Lakes including between the United States and Canada.
        So my question for you, Chairman Maffei, is first of all I
    want to thank you for the FMC efforts on this issue today, but
    could you assure me and the Committee that you will look into
    this issue, and perhaps comment on how important it is to make
    sure that we get a fair resolution to this?
        Mr. Maffei. I am happy to assure you of that. The Lake
    Carriers' petition has been investigated by the Commission for
    some time, there was a--we were waiting for other agencies of
    the United States, and to see this, whether the situation would
    evolve to a point where the petition would no longer be needed.
    However, the lake carrier--it is indeed the Lake Carriers who
    reasserted this petition.
        Now, I do have to be careful here, because I cannot talk
    about this particular case because it is an ongoing
    investigation, but I can tell you what this is, what part of
    the law this is, and how that works. And assure you that I will
    be, that we--I believe all members of the Commission are very
    interested in making sure that we do our duty toward this.
        Under Section 19 of the Merchant Marine Act of 1920 the FMC
    has the authority to take action when conditions unfavorable to
    shipping in the foreign trade exist. For example--I will use a
    different example; in February 1997 the Commission found that
    certain port regulations in Japan discriminated against U.S.
    shippers in Japanese harbors, and the FMC ordered a fee of
    $100,000 back then, per each cargo vessel of the three major
    Japanese carriers, that was brought into a U.S. port.
        So this is the kind of thing that can happen if we indeed
    find that any other government has created a condition that
    discriminated against U.S. shippers.
        Chair Peters. Well, thank you. Thank you. This next
    question is to each of you. And I will start with Ms. Dye
    first. Michigan's agricultural industry is expected to export
    about $2.2 billion in agricultural products, it plays a vital
    role in supporting our state's economy. Export opportunities
    are critical for success of our agricultural sector as it is,
    of course, all over the country. But supply chain disruptions,
    when they occur, threaten our farmers' ability to market their
    products around the globe.
        So I want to ask each of you, if you would let the
    Committee know, how rulemakings the FMC is working on now, will
    actually ensure reliable supply chains for our agricultural
    exports? So, what can I tell my farmers and other folks in the
    agricultural industry, is being done to ensure that for them?
        Commissioner Dye.
        Ms. Dye. Yes, Mr. Chairman. I am very pleased with the
    response that we have received on our recent Demurrage and
    Detention Billing Rule from exporters, in particular, and their
    truckers, and especially in LA/Long Beach. The clarity and
    predictability of the rule's requirements assure that exporters
    do not have to spend time tracking down an invoice that is 6
    months old, because today the bills have to be sent in 30 days,
    which is a reasonable amount of time.
        And so the effectiveness of these--of the approach in this
    rule will make sure that they save--that they save money, and I
    think that is the most important thing at this point.
        Chair Peters. Great. Thank you.
        Chairman Maffei.
        Mr. Maffei. Yes, Senator. As I already talked about the
    specific rule that will be coming out that will help us enforce
    the prohibition against unreasonably denying cargo that is
    important. However, there are a lot of other important
    initiatives that the Commission is working on. Part of the
    challenge with the shipments is the unpredictability, generally
    speaking, of when ships are going to leave, the possibility of
    what we call ``blank sailing'' when a ship does not go.
        These affect all cargo importers and exporters, but
    particularly agricultural exporters who may have a shelf life
    of their product or whose product is desperately needed. If you
    need, you know, protein products from dairy farms in Michigan
    to feed your people you cannot, you cannot necessarily put
    those off.
        So Commissioner Dye has done a lot of good work on this,
    she is sometimes too modest about how to--working with her
    supply chain taskforces to make sure--to figure out better ways
    of predicting these things, and how we can get those to
    shippers. This is not a completely government approach, we are
    not going to mandate things, I don't think. But what we are
    talking about is getting--is being--using our power as
    conveners to help get things together.
        I will be attending the Agricultural Shippers Conference
    this year, I think usually we sort of alternate those, but
    always, at least one Commissioner is there to sort of see how
    we can be helpful there. And then the enforcement is
    extraordinarily important, and the fact particularly on
    detention and demurrage, that the FMC now is willing to stand
    up for American shippers, particularly America's agricultural
    exporters, to ensure that they are given fair treatment. And so
    there is a lot of--a lot of stuff that we do.
        Oh. And I did mention, I think, already, but just in case I
    didn't. There is a specific advocate for exports in our
    Consumer Affairs Division that can be called on if an exporter
    has an issue and just does not know what to do. I mean not
    everything falls into an easy category of, file a case with the
    FMC, or get the FMC to investigate it, or call the carrier and
    ask them to waive a fee. So we have a specific person assigned
    to that in our Consumer Affairs Division.
        Chair Peters. Great. Thank you. A final issue I want to
    raise for both of you, and hear your thoughts, something that I
    know you agree on. But investing in the modernization of our
    ports so they can handle bigger ships and prevent congestion is
    absolutely critical for our entire national economy.
        In fact, by 2045, port infrastructure investments could
    produce economy-wide returns of between $2 to $3 for every
    dollar spent. That is a real good return on investment over
    that time period. That is why I led, and strongly supported
    efforts to increase the funding for the Maritime
    Administration's Ports Infrastructure Development Program,
    which is the PIDP Grants. These grants can be used to fund the
    port infrastructure needed to improve freight mobility, address
    port congestion, and improve port competitiveness.
        The Infrastructure Investment and Jobs Act, that we passed
    contains $17 billion for investing in our port infrastructure
    and waterways, including $2.25 billion for the PIDP. The
    express purpose of this funding is to be used in modernizing
    port infrastructure, making it more resilient, and sustainable,
    and to help remove bottlenecks, as well as reduce some
    environmental impacts.
        So I would like to hear from both of you, if you could
    speak as to how these increased investments in our port
    infrastructure, such as what was contained in the
    Infrastructure Investment and Jobs Act, as well as our Build
    Back Better Act that passed recently through Congress and
    signed by President Biden, will help alleviate congestion in
    our ports throughout the supply chain?
        Commissioner Dye, do you want to start?
        And then Chairman Maffei, you can wrap it up.
        Ms. Dye. Thank you very much. Of course, our executive
    directors of our ports are impressive people, and their
    recommendations for what they need in their ports, is the best
    place to start. I am familiar with the MARAD Program, and I
    know it is very well regarded among port directors. And of
    course, all infrastructure; roads and other infrastructure
    directly related to the port, can help alleviate bottlenecks.
        Chair Peters. Thank you, Commissioner.
        Chairman Maffei.
        Mr. Maffei. Yes. I mean, I want to make sure I am wearing
    the right hat for this because, of course, when I was a
    Congressman, I was a huge supporter of these things, and
    unfortunately, we could not get that passed when I was in
    Congress. But it is true that it is not in our jurisdiction, of
    course, to administer any of these programs.
        But in terms of the supply chain that we care about and we
    monitor, it is extraordinarily important that, in my view, that
    the country continue to make those investments. I think
    Commissioner Dye is absolutely right. If you want to build
    better railroads, if you want to build bridges in Indiana, or
    in Michigan, that helps us on the coasts, it helps us
    everywhere. It is one integrated supply chain system.
        And I think one of the lessons of COVID is that you can
    even have ports that are operating relatively well, but they
    will still look completely clogged because of the lack of
    infrastructure, or other sorts of things.
        So this money, it is my understanding, can be used for all
    sorts of port improvements. LA and Long Beach have both found
    land that is not exactly on the water but helps in the event
    that they have a surge in cargo. And I will give you one
    example from the past, the port of--that I am most familiar
    with, the port of New York/New Jersey, the major port I am most
    familiar with, did the difficult task of raising a bridge, the
    Bayonne Bridge.
        That didn't just help the port of New York and New Jersey,
    and ports on the north--in the northeast or shippers in the
    northeast, it helped the entire coast, it helped Savannah in
    Senator Warnock's state.
        And the reason is because when ships come, they usually,
    they make a first call, and then they may make a last call. So
    anyone in that vicinity is helped. Improving Houston helps the
    Port of Gulfport, improving San Francisco; it can help the
    ports in the Puget Sound.
        So yes, I think it is very, very important that the country
    continue these priorities. Though, again, it is not anything
    that we would administer or get involved in, but generally
    speaking, it helps all of us, and helps us do our job to make
    sure that there are good supply chain options.
        Chair Peters. We are expecting another member to be here
    shortly, so I get a chance to ask a few more questions.
        So Chairman Maffei, the lake that allows the Panama Canal
    to function is at its lowest level since 1995, due to an
    extended lack of rainfall in that region. In response, the
    Panama Canal Authority has substantially scaled back daily
    traffic, limiting the number of vessels allowed to transit the
    canal from 38 ships a day down to 24, which is a significant
    reduction.
        Mr. Maffei. And it may go down even further, is the plan
    for them. Sorry to interrupt.
        Chair Peters. That is OK. We are friends, you can do that.
    The Panama Canal handles roughly 40 percent of all U.S.
    container traffic and is critical for the transportation of
    energy commodities. So my question for you, Chairman Maffei,
    is: In light of the situation in the Red Sea, can you speak to
    what FMC is doing to ensure that the Panama Canal drought does
    not compound all of these ongoing problems, with delayed
    shipments, and transportation costs? Are there things that you
    could be doing? And how concerned, you mentioned, that this is
    going to get worse before it gets better? Is this something you
    lose sleep over?
        Mr. Maffei. I do. I do lose sleep over it. You know me, you
    know me well Senator. I lose sleep over things that other
    people probably wouldn't take note of, but. And I am
    extraordinarily concerned about it. In terms of the FMC's role,
    that is a little more challenging. We do not want to overstep
    our authority in any of these ways.
        But I will say a couple of things. One is, obviously, there
    are additional fees associated with Panama Canal transits that
    we do need to keep an eye on to make sure if there are extra
    fees, we don't regulate rates, but we can look at whether a fee
    is doing what it says, and is making sure it is not
    unreasonable in the way it is presented, or an unreasonable
    rate increase in disguise. So we can take a look at that. We
    can also, you know, look at the overall supply chain options
    that shippers have.
        That said, though, myself and Commissioner Louis Sola, who
    I mentioned is here today, are going to conduct a preliminary
    inquiry into the water level issues, and Panama's handling of
    them, to determine whether there are any other ways that the
    FMC can be helpful without overstepping our authority.
        The two of us have already talked about that, and we expect
    to commence that, and probably make a fact-finding trip to
    Panama, just to make sure that we have the appropriate
    information that we need to make that determination.
        I have tried to lengthen this answer, Mr. Chairman, but I
    think I am done. So I am going to--Mr. Chairman. If you
    remember, Mr. Chairman, I didn't serve in the Senate, so I
    don't know how to filibuster.
        [Laughter.]
        Chair Peters. I guess I can ask both of you to answer.
    After the pandemic, of course, we had all sorts of issues
    related to the pandemic, but actually truck chassis, the
    shortage of truck chassis was an element there. Could you give
    the Committee an update as to what is happening, what actions
    can be taken, and what we should be thinking about for the
    future? And clearly some of the lessons learned in the pandemic
    are ones that we should take to heart because--let us hope
    there is not another pandemic for over a hundred years--but we
    cannot be assured of that, nor can we be assured of some other
    type of challenge confronting us.
        But if you could talk about truck chassis, in general, and
    the response to that, but perhaps other things that you learned
    from the pandemic that you think we should be thinking about in
    the future, and we can----
        Either one of you, who would respond; whoever wants to go
    first?
        Ms. Dye. Most recently, the Commission has released an
    Order concerning a case that was filed by the American Trucking
    Association, and it concerns chassis, but the chassis are not
    an issue in that case. The issue was whether or not the so-
    called ``Box Rules'' that ocean carriers imposed on the
    railroads were reasonable under our authority on reasonable
    practices.
        Our ALJ issued an exhaustive opinion. The Commission
    reviewed it, and we affirmed her decision. And so currently,
    there are certain issues that will be, by that Order, referred
    back to the ALJ for decision. But in the meantime, the Order on
    the unreasonableness of these Box Rules is in effect and can be
    enforced today. But if we--we don't regulate chassis.
        Chair Peters. Right.
        Ms. Dye. And this is not an attempt to regulate chassis.
        Chair Peters. Correct.
        Ms. Dye. But the ocean carriers do have contracts with
    them, the case was about the ocean carriers' restrictions not,
    in any way, the chassis themselves.
        Chair Peters. Thank you. Chairman Maffei.
        Mr. Maffei. Yes, Senator. I think the Commissioner did well
    by that particular question. You also asked about lessons from
    COVID. I would say there are two specific lessons, one for the
    FMC--and one for the FMC, but broadly speaking. The one for the
    FMC is that we can no longer afford, I think, for many, many
    years--the FMC did a good job, a diligent job of setting the
    rules, but there was not necessarily a sense that you had to be
    a referee on the field.
        So you would set the rules, the game would be played, and
    then afterwards, people could bring cases, or maybe if there
    was something egregious, the FMC would investigate.
        I think what COVID showed us is that, unlike just setting
    the rules and letting the game be played, there needs to be a
    referee on the field. Shouldn't be playing the game, shouldn't
    be involved in the game, shouldn't be setting rates, we
    shouldn't--our market-based system has, by and large, worked
    for American shippers, but should be there making sure that the
    Shipping Act is enforced, that there are no unreasonable acts,
    or discrimination, and that our competition rules are followed.
        And the second broader lesson is that the United States
    does remain vulnerable, and U.S. companies remain vulnerable
    because of the lack of diversification in their supply chains.
    You have said that, you know, hopefully there won't be another
    pandemic in a hundred years, and that may very well be the
    case. But I can guarantee you there will be another crisis; and
    perhaps a confluence of crises, even worse, potentially, than
    we have now, that will affect shipping in a similar way.
        It is not predictable, even if you could have predicted the
    COVID pandemic; I would submit to you that very few people
    predicted that the impact on shipping would be tremendous
    demand and no--and not sufficient supply, as opposed to the
    reverse.
        And so, in that treacherous environment, and it is only
    becoming more treacherous as geopolitical factors contribute
    even more to the difficulties of America's importers or
    exporters, to the extent that we all can, at the FMC, but at
    other agencies of Government, and even in the Congress, promote
    diversification of the supply chain,
        Having companies do whatever they need to do, Euro-shoring,
    French-shoring, offshoring, Jersey-shoring, whatever you need
    to do to make sure that we--that your factory won't be shut
    down. That you have given your products the best chance of
    being exported to their markets, and so that is, you know, I
    mean, it is more of using my mini-pulpit, but I go--wherever I
    go, I try to remind shippers of that.
        Chair Peters. Well, thank you, Chairman Maffei.
        We are joined by the Chair of the Committee, Chair
    Cantwell.

                   STATEMENT OF HON. MARIA CANTWELL,
                      U.S. SENATOR FROM WASHINGTON

        Chair Cantwell. Thank you, Senator Peters. Thank you so
    much for chairing this important hearing; and nominations of
    our two colleagues back to the Federal Maritime Commission.
        And thank you for both being here, and joined with also
    Commissioner Vekich, thank you for being here.
        During COVID-19, we were just discussing this writ large,
    right? And I think the word that we are using, is how do you
    de-risk your supply chain? And so, meaning can't afford to have
    this level of risk in our supply chains that we saw during
    COVID.
        But with the offloading of imports, and then leaving the
    dock without picking up American product and taking it back was
    the major issue. And in some cases, our agricultural products
    spoiled on the docks. So the Federal Shipping Act makes it
    unlawful to unreasonably deny cargo. The Commission didn't step
    up and put a stop to this problem during the pandemic, and that
    is why the Ocean Shipping Reform Act was required, and the
    Commission to enter a rulemaking, and to define what is
    unreasonable and put it into this practice once and for all.
        So Chairman Maffei, cargo stranded at ports harm American
    shippers, they harm our farmers, our fishermen, our businesses
    that rely on those ocean carriers to get their products to
    market across the globe. So I was pleased to see an initial
    proposed rule on September 21, 2022, followed by a second
    public comment period that closed last summer. But despite that
    progress, I am concerned that we are not quite there yet.
        So what is the status of this unreasonable denial of cargo
    rulemaking? What can we do to help our farmers and business
    people get this final rule?
        Mr. Maffei. I do believe that the Final Rule is forthcoming
    in the next couple of months. And the reason for the delay, I
    don't believe is substantive. I think that the Final Rule will
    be very close to the supplemental rule. But it is very, very
    important that we do everything we can to, one, avoid any
    unintended consequences. We don't want to harm America's
    agricultural exports while trying to help them. I don't think
    that will happen, but we are going to make sure it does not.
        And second, we want to make sure that it is bulletproof in
    terms of being challenged in front of the courts. And we are
    finishing that up. We are getting the Detention and Demurrage
    Rule done is very important also, just because of the----
        Chair Cantwell. Just one on that point, because you are
    making me think that you think intimidation by these foreign
    carriers to our agriculture economy, where they are going to
    retaliate if they don't like the rule that you are coming out
    with, is something you might be referring to, because we are
    not going to put up with that. We are not going to put up with
    foreign carriers intimidating our agricultural economy.
        Mr. Maffei. No. And we wouldn't at the FMC either. And you
    have given us the tools in OSRA 2022, I think, to enforce that
    greatly.
        Chair Cantwell. Well, you said you were going to do
    something, but not if you felt like it will ultimately harm
    farmers. And while we were working on this legislation we heard
    the same kind of chatter, which is really the foreign carriers,
    basically, threatening retaliation. So I am going to get to a
    second question that will illuminate a little of----
        Mr. Maffei. Yes. I don't know that the----
        Chair Cantwell. But just that comment you made, please
    don't--focus on protecting American businesses, focus on using
    our leverage. If you want access to our ports, guess what,
    there are rules to that, and that is that you call on our
    ports, you have to take stuff out of our ports, and you can't,
    you know, have unreasonable scheduling where you are not
    communicating with these customers.
        Mr. Maffei. Well said.
        Chair Cantwell. If you want to call on our ports, if you
    want to call on our ports.
        Mr. Maffei. Well said, Senator.
        Chair Cantwell. OK. Great. So I want to hear from both you
    Commissioners Dye/Maffei, on the fact, what else can we do to
    protect our businesses on this access to reasonable and
    reliable ocean shipping? What else do you think we should be
    doing?
        Ms. Dye. Chair Cantwell, I think that we need to get ready
    now, that the supply chain needs to be strengthened. There are
    certain bottlenecks that occur, every cargo surge, and every
    peak season. And I have encouraged marine terminals in LA, Long
    Beach, New York/New Jersey to work with us and address these
    concerns now, because we know, inevitably, there will be other
    problems with the supply chain.
        We hope and pray that there won't be another pandemic, as
    Chairman Peters mentioned, but there will be another
    dislocation. And so I have started working with them, and we
    will keep you informed on the progress, because I think that
    the system, the supply chain needs to be strengthened. It will
    benefit the competitiveness of the United States, overall, in
    addition to be more responsive to the needs of importers and
    exporters.
        Chair Cantwell. OK. I was thinking broadly, but.
        Mr. Maffei. Yes. No--I agree with what my colleague said,
    but may I also address the question?
        Chair Cantwell. Yes, please.
        Mr. Maffei. OK. Yes, Madam Chair. One of the issues that
    is--has been a big problem is that a lot of--this happened
    during COVID, but frankly it has been happening since before
    COVID, where agricultural shippers will show up with their
    cargo, and there will not be enough space on the ship for the
    cargo, which is very puzzling because, of course, most of the
    time our ports are importing more than they are exporting.
        And so there have been some issues with that. And again it
    particularly happened during COVID when actual space was
    becoming a problem, but sometimes, you know, a ship would be--
    shipping would be canceled, what we call blank sailings, or
    what have you. And so what they would do is start booking
    multiple times on various ships to make sure they could get
    this precious cargo, much of it perishable, to the markets
    where it was needed, and where it was demanded.
        Then the ocean shipping companies seeing this--seeing all
    this overbooking, or seeing them overbook, started overbooking
    themselves, and putting 120-130 percent of their shipping, and
    that just created this death spiral, if you will. So unraveling
    that I do think is something the FMC could have a role in, and
    I do--I would like to commence hearings on that as soon as we
    kind of have the bandwidth. I think we have to get our rule out
    first, frankly, but we definitely think we need to do that.
        The other issue that I do keep an eye on is equipment. Our
    agricultural exports in particular, need the right--not just a
    container, but the right kind of container. It has to be clean,
    and in good condition, sometimes it has to be what we call a
    refer container, or refrigerated container. Often because of
    the weight, the relative weight of agricultural exports, a 20-
    foot container is much more useful than a 40-foot container.
        And also, a lot of our agricultural exports not the--not
    most of them in Washington State, but even in Washington state
    they tend to be more in the eastern part of the state, Walla
    Walla, et cetera, that is not where the containers necessarily
    go with the consumer goods. So repositioning of containers is
    something else that I do think we should keep an eye on, both
    at the FMC and the Congress.
        Chair Cantwell. Do you mean delinking that?
        Mr. Maffei. Hmm?
        Chair Cantwell. Some people have talked about delinking
    that, the ownership, so that you could have a more robust
    system.
        Mr. Maffei. That I mean, I am not necessarily advocating
    that now, I do not know enough about it, but I have heard that
    as a possibility. I mean another--there could be some role for
    the Department of Agriculture, there could--just a number of
    different things that we could talk about.
        Chair Cantwell. Well, let me ask you about the detention
    and demurrage fees issue, because between 2020 and 2022, nine
    of the largest carriers charged approximately $8.9 billion in
    demurrage and detention fees, these are--fees above the cost of
    shipping.
        So just last week the Commission published a Final Rule on
    detention and demurrage practices to help cut down on these
    costs and improve transparency. Can you tell me how this new
    rule will cut down on those costs facing shippers in the United
    States?
        Ms. Dye. I can give you an example that directly affected
    exporters who did everything right, their cargo was waiting on
    the dock, but the ship didn't pull in on time, and they were
    being charged fees for storage, although they had done
    everything according to port practices. And so that was the
    first--one of the first things, that I and my colleagues
    emphasized to ocean carriers, that no charges will lie against
    an exporter under the Incentive Principle, that from our
    regulation, against exporters because the ship didn't pull in
    on time.
        And I am pleased to say that the ocean carriers changed
    their systems to stop that. There are a few other examples like
    that that our Interpretative Rule, the Incentive Principle has
    outlawed. This is the first--these detention and demurrage fees
    are despised internationally. And the United States was really
    the--we were the first ones who really took action to make sure
    that they serve the purpose for which they are intended.
        Chair Cantwell. Well, these are exorbitant fees passed on
    to the consumers, and we can't afford that. And so we--I don't
    know how confident you are that this rule is going to get rid
    of those exorbitant fees. Could you tell me?
        Ms. Dye. I believe that we have, ``we'' in the marketplace,
    there is much broader compliance. And of course in OSRA you
    provided a complaint process, that if carriers don't actually
    mitigate or avoid fees then shippers are free to come to the
    Federal Maritime Commission and we will investigate.
        Chair Cantwell. Well, investigations is one thing I thought
    you would say when I said but, you know, what can more can you
    do? I would have thought maybe you would talk about your
    investigation----
        Ms. Dye. Yes.
        Chair Cantwell.--because you have done some good
    investigations and you----
        Ms. Dye. Yes, I misspoke, Chair Cantwell. We will
    certainly, if our investigation shows that the fees should not
    be charged then we will either act with our enforcement, or
    what often happens is that the carriers will just avoid it,
    voluntarily.
        Chair Cantwell. I am sorry. They will avoid those fees?
        Ms. Dye. They will not charge.
        Chair Cantwell. Thank you.
        Ms. Dye. They will cancel the charge.
        Chair Cantwell. Thank you.
        Mr. Maffei. And sometimes they will get, they will get
    scared off. And Senator, I also want to bring up the charge
    complaints thing, because this was specific to OSRA and it has
    put a fast track on the kinds of complaints that shippers might
    have on detention and demurrage, and that has been
    extraordinarily important. And in fact, has resulted already in
    refunded or waived fees of $2.25 million, and these are often
    fairly small cases. So in terms of limiting the abuse of these
    fees, I think that program has a lot to do with it. Look----
        Chair Cantwell. So you would say that the most important
    measures that you have been taking on the implementation of
    compliance with the Ocean Shipping Reform Act, is these
    investigations? Is that--or are there other enforcements at
    seaports?
        Mr. Maffei. Well, I don't--I don't like to choose between
    my children. All of the OSRA initiatives are extraordinarily
    important, but I think on detention and demurrage, it is a
    multifaceted issue. And I will say this. I do believe that our
    new D and D Rule will be very, very effective in helping to
    eliminate some of the billing abuses.
        But there might still be more. And then we will do another
    rule. But we will, we will fully enact both the OSRA, but also
    whatever we need to do to make sure that Senator Dye's authored
    initial Interpretive Rule that said: These fees are for the
    promotion of the movement of cargo, they are not to pad the
    bottom line of an ocean shipping company, they are not for
    other purposes. They are supposed to be used for that, and if
    they are not used for that they are unreasonable. And we will
    do whatever it takes until we get there.
        Chair Cantwell. Well, we would like to see a report to the
    Committee on what types of complaints you have investigated,
    what kind of enforcement actions, what kind of results have you
    had in driving down the cost to our consumers and businesses
    that are trying to be involved in international trade.
        And I guess if there is a meta message here; look, I hope
    that you are thinking about more competition, certainly more
    transparency, which that is probably your investigations and
    enforcement, but I also think we need to think about more
    technology. I am a big fan of blockchain technology when it
    comes to an immutable manifest.
        So we should be moving toward some system where we know
    where everything is at every moment, it is just kept in a more
    private way. And that way we would get a lot of the mystery out
    of this situation, and get a system that could be more
    dependable and reliable.
        I am not asking you to, necessarily, lead the charge, but
    you can lead a discussion about what some of those options are
    to make shifting even more cost-effective in the United States.
    But I don't want--I represent a big trade state. I have a lot
    of people whose, 90 percent of their product is exported. So we
    want to see a more aggressive FMC. We don't want to see a
    sleepy little agency when 95 percent of consumers live outside
    the United States.
        We want trade to work, we want--if you want to call on our
    market, we want you to know that there is rules to come into
    our market, and that we have an aggressive agency. We are not
    going to gouge people. We are just going to stop people from
    being gouged. That is the key thing. And if you could lead that
    charge then obviously we will continue to work with you all.
    But we need an aggressive agency.
        Thank you, Mr. Chairman. Thank you for doing this.
        Chairman Peters. Thank you, Madam Chair.
        Before we close today's hearing I have one more question,
    and we ask this of every nominee that comes before this
    committee. If confirmed, will you pledge to work
    collaboratively with this committee, provide thorough and
    timely responses to our request for information, as we put
    together and address important policy issues, and would you
    appear before this committee when requested?
        So if we could answer yes or no; Commissioner Dye?
        Ms. Dye. Yes. Thank you.
        Chairman Peters. Chairman Maffei?
        Mr. Maffei. Some would argue that I tried to appear before
    this committee too much. But absolutely, Senator, and I think
    my record and the record of Commissioner Dye, and the other
    Commissioners, in working with this committee, and in putting
    together the drafts of--the drafts of OSRA, show that my--we
    have absolutely done that, and it has been to the advantage of
    U.S. importers and exporters. And I, certainly, will continue
    to do that.
        Chairman Peters. Well, very good. Well, I want to thank
    both of you. Thank both of you for being here today. I also
    want to congratulate you on your renomination for these
    important jobs, and your willingness to take on this work. As
    it is very clear with the questions that were posed today, and
    your answers, this is a very serious business, and one that is
    vitally important for our country and for our country's
    economy.
        Senators will have until close of business Monday, March 4,
    to submit questions for the record, to the Committee. And
    witnesses will have into will close a business Monday, March
    11, to respond to those questions.
        Thank you, once again.
        And this now concludes today's hearing.
        [Whereupon, at 11:07 a.m., the hearing was adjourned.]

                                A P P E N D I X

       Response to Written Questions Submitted by Hon. Amy Klobuchar to
                             Hon. Daniel B. Maffei
        Due to the unfair treatment by the foreign carriers, the Ocean
    Shipping Reform Act directed the Federal Maritime Commission to
    establish a process for shippers to file complaints against carriers
    and contest unfair charges. The law also shifts the burden of proof
    onto ocean carriers to prove that charges are reasonable.

        Question 1. In your testimony, you note that the Federal Maritime
    Commission has already received twice as many new cases in the first
    two months of 2024 as in the entire year of 2020. How has the Ocean
    Shipping Reform Act empowered shippers to file complaints against
    unreasonable practices by carriers?
        Answer. In the part of my testimony referenced by your question, I
    was referring to formal cases filed with FMC's Office of Administrative
    Law Judges, specifically that 19 formal cases have been initiated since
    January 2024. By demonstrating FMC's willingness to enforce cases even
    against some of the largest ocean carriers, the FMC assured aggrieved
    U.S. importers and exporters that they would not be wasting their time
    by filing an FMC case.
        In addition to the formal cases I was referring to, the FMC has
    seen significant growth in the number of cases filed under the OSRA-
    mandated ``charge complaint'' process.\1\ To implement OSRA's charge
    complaint provisions, the Commission quickly promulgated an interim
    procedure to process the new complaints efficiently and effectively.
    This process allows a person to submit to the Commission ``information
    concerning complaints about charges assessed by a common carrier.'' \2\
    Upon receipt of any such information, the Commission must accept the
    information and ``promptly investigate the charge with regard to
    compliance with section 41104(a) and section 41102'' of the Shipping
    Act.\3\ Importantly, section 41310(c) requires the common carrier to
    refund any charge that the Commission determines to be violative of the
    Shipping Act.\4\ Moreover, section 41310(d) empowers the Commission
    with the discretion to assess civil penalties against a common carrier
    who assessed the illicit charge.\5\ Since OSRA's enactment, the charge
    complaint process has resulted in the refund of approximately $2.3
    million to aggrieved shippers.
    ---------------------------------------------------------------------------
        \1\ See 46 U.S.C. Sec. 41310.
        \2\ 46 U.S.C. Sec. 41310(a).
        \3\ 46 U.S.C. Sec. 41310(b).
        \4\ 46 U.S.C. Sec. 41310(c).
        \5\ 46 U.S.C. Sec. 41310(d).
    ---------------------------------------------------------------------------
        Since the enactment of OSRA 2022, the FMC's Bureau of Enforcement,
    Investigations, and Compliance has investigated 202 detention and
    demurrage and/or carrier charge-related inquiries. Of those, 135 of the
    active investigations were resolved by the carrier after initial
    contact/notification from our investigators, with 41 investigations
    resulting in a finding of no violation and 10 complaints being referred
    to our Office of Enforcement. Furthermore, our consumer affairs office
    is available for consultations to help shippers determine how best to
    get assistance with their specific issues. The FMC website has various
    tools to assist shippers such as a webinar on how to utilize the charge
    complaint process. The webinar has more than 1,800 views online--an
    indication that the shipping public is using this resource to
    facilitate the surge in charge complaint filings the FMC has seen since
    OSRA's enactment.\6\ The Commission also developed and posted written
    guidance on the interim charge complaint procedure, providing an
    additional resource for America's shippers to bring their claims before
    the Commission.\7\
    ---------------------------------------------------------------------------
        \6\ https://www.youtube.com/watch?v=Wf1jQAJdE9g.
        \7\ https://www.fmc.gov/osra-2022-implementation/charge-complaint-
    interim-procedure/.
    ---------------------------------------------------------------------------
        Beyond these web-based resources, myself, along with each of my
    fellow Commissioners, have made a concerted effort to publicize FMC
    enforcement during public appearances and speaking engagements. I have
    worked to ensure that aggrieved shippers are well aware of the various
    avenues that the FMC can provide and, with specific regard to charge
    complaints, the speed and efficiency with which the process can bring
    resolution to their claims.
        Global trade routes have been disrupted in recent months in attacks
    by Iran-backed Houthi militants on commercial shipping in the Red Sea,
    forcing vessels to go around the Cape of Good Hope. During this crisis,
    costs to some shippers have risen more sharply than during early months
    of the pandemic.\8\ Some shippers are concerned about the lack of
    transparency from ocean carriers regarding the duration of the
    emergency surcharges and fines, which cargo is subject to those
    surcharges, and what those surcharges specifically cover.
    ---------------------------------------------------------------------------
        \8\ https://www.xeneta.com/blog/red-sea-crisis-newsfeed.

        Question 2. How is the Federal Maritime Commission facilitating
    communication between shippers and carriers about the reasons and
    duration of surcharges and fines?
        Answer. The Commission is helping to facilitate communication
    between shippers and carriers, and we have the authority and
    responsibility to ensure that the carriers are not operating in a
    manner contrary to America's shipping laws.
        In pursuit of these goals, the Commission recently held a public
    hearing on the threats to shipping caused by the current conditions in
    the Red Sea and Gulf of Aden regions. The Commission had the benefit of
    discussing the impacts of the Red Sea crisis with three panels,
    comprised of representatives of shippers, carriers, ports, and a
    maritime security expert. One of the primary takeaways from the hearing
    was the need for additional transparency from the ocean carriers to
    enable shippers to understand how the fees and surcharges related to
    specific operational adaptions to the Red Sea situation are calculated.
    Indeed, the shippers we heard from did not object to the assessment of
    such fees--geared to ensure the safe passage of mariners and cargo
    alike--but instead their objections were based on the inability to
    discern exactly what fees were being charged to meet those goals.
        Following the hearing, I instructed Commission staff to begin
    reviewing the agency's process for granting ``special permissions,''
    which allow carriers to institute new fees under their filed tariffs
    without the usual 30-day notice.\9\ I believe that the circumstances
    surrounding the Commission's granting of these special permissions was
    warranted. That said, I am committed to ensuring that the Commission's
    processes are geared to ensure fair and transparent dealings between
    the carriers and their customers. Moreover, as I emphasized during the
    hearing, the granting of the special permissions is not an approval of
    the fees themselves, which the Commission evaluates independently of
    any special permission request submitted. The FMC's VOCC Audit Program
    is gathering further information to help evaluate the reasonableness of
    these fees. The VOCC Audit team will seek clarity as to the internal
    processes that carriers use when calculating and instituting the
    charges. Where appropriate, the Commission will request the carriers be
    more transparent with such information. If a carrier that does not
    participate in this effort by the VOCC Audit Program, the FMC has
    several options to compel carriers to provide the Commission with its
    justification for the Red Sea-related charges. Furthermore, any
    specific complaint against a carrier alleging the carrier misused or
    misrepresented any Red Sea-related charge will be prioritized.
    ---------------------------------------------------------------------------
        \9\ 46 U.S.C. Sec. 520.14.
    ---------------------------------------------------------------------------
                                     ______

      Response to Written Questions Submitted by Hon. Raphael Warnock to
                             Hon. Daniel B. Maffei
    Federal Maritime Commission's Detention and Demurrage Rule
        Georgia's deepwater ports are critical to its economy. Storage fees
    are one way that Georgia's marine terminal operators incentivize
    shippers and importers to promptly remove their cargo and keep our
    ports efficient.\10\ The Federal Maritime Commission's new rule on
    Demurrage and Detention Billing Requirements institutes changes to this
    practice, and these changes may lead to confusion across the maritime
    industry, delays, and increased costs.\11\
    ---------------------------------------------------------------------------
        \10\ Report: Rules, Rates, and Practices Relating to Detention,
    Demurrage, and Free Time for Containerized Imports and Exports Moving
    Through Selected United States Ports, Federal Maritime Commission
    (April 3, 2015), https://www.fmc.gov/wp-content/uploads/2019/04/
    reportde
    murrage.pdf at 12 (``The primary goal of reduced free time and
    increased demurrage was to encourage shorter dwell times at the
    terminal and thereby increase the overall velocity of the equipment,
    which reduces the VOCC's equipment inventory needs and its operational
    costs'').
        \11\ 46 CFR Sec. 541.

        Question 1. Are you concerned that the Federal Maritime
    Commission's new detention and demurrage rule--specifically its invoice
    and fee mitigation provision, and refund, or waiver requests
    provisions--may lead to delays in fee collection and ultimately
    congestion at America's ports?
        Answer. The Commission's newly promulgated Demurrage and Detention
    Rule (D&D Rule or Rule), is designed to fulfill a requirement of the
    Ocean Shipping Reform Act of 2022 (OSRA):

            Not later than 45 days after the date of enactment of this Act,
            the Federal Maritime Commission shall initiate a rulemaking
            further defining prohibited practices by common carriers,
            maritime terminal operators, shippers, and ocean transportation
            intermediaries under section 41102(c) of title 46, United
            States Code, regarding the assessment of demurrage or detention
            charges.\12\
    ---------------------------------------------------------------------------
        \12\ Ocean Shipping Reform Act of 2022, 136 Stat. 1272, 1275
    (2022).

        In drafting the Rule, the Commission thoroughly considered the
    public comments submitted to write a workable and beneficial regulation
    to serve its intended purpose--ensure predictable and clear billing
    practices while minimizing negative unintended consequences such as
    confusion, delays, and increased costs.
        As with any substantive regulatory change, this Rule will require
    regulated entities to conduct parts of their business in a different
    manner than they have in the past. While adjustments in operational
    practices are implemented, it is not impossible that there may be
    questions or confusion on the part of a terminal operator. The FMC
    stands ready to assist such terminals in finding the easiest way toward
    compliance. Furthermore, I commit to you that I will reach out to the
    senior leadership at the Georgia Ports Authority to ensure that the FMC
    is doing everything appropriate to inform it about the Rule.
        Regarding concerns about delays in fee collection and the risk of
    congestion, I would note that prior to this Rule, there was no time
    limit for invoice issuance and fee mitigation, refund, or waiver
    requests. This led to unpredictable situations for terminals and
    shippers alike. The 30-day requirement provisions will result in
    predictable practices and serve to protect American importer and
    exporters. No longer will billing parties be allowed to delay in
    calculating the fees imposed or sending an accurate invoice to the
    appropriate party. The billing party will have to give 30-days in case
    the shipper wants to dispute the charge but will benefit from not
    having charges be challenged later than that.
        With limited time windows, the connection between the charge and
    moving the cargo will be fully conveyed, deterring congestion.
    Detention and demurrage invoices must also be issued to the company
    that contracted for the freight service or the company who is actually
    receiving the cargo to ensure that the billed party has the most
    interest and control over picking up the container. Previously,
    terminals would sometimes bill trucking companies with which they had
    no contractual relationship--these truckers did not necessarily have
    any control over when their clients would hire them to pick up the
    cargo. If these trucking companies did not pay, often a terminal
    operator would lock them out and prevent them from picking up other
    cargo, thus creating more congestion. In this and other areas, the new
    D&D Rule requires carriers and marine terminal operators to adjust the
    way they conduct business in order to ensure a system promoting cargo
    fluidity in America's ocean-linked supply chains.
    Port Congestion Mitigation
    Georgia's deepwater ports are an economic engine for the entire state.
        Question 1. As Chairman of the Federal Maritime Commission, what
    actions have you taken or supported to protect against future supply
    chain bottlenecks at our Nation's ports?
        Answer. During COVID, ocean carriers and terminals often charged
    detention and demurrage fees in cases when it was impossible for
    American shippers to move their full or empty containers more quickly
    due to congestion or other issues beyond their control. Many of the
    invoices were confusing, lacked key information, or were issued many
    months later after the fact. So many invoices were sent out by ocean
    carriers and terminals that many American companies just threw up their
    hands and paid the fees, feeling they had no choice and that they would
    get charged even if they were responsible about moving their cargo and
    returning their empties. In this way, the system of detention and
    demurrage lost credibility as it was no longer an incentive to American
    shippers to move cargo or return empties timely.
        To address these issues and restore credibility to the system of
    detention and demurrage, the FMC under my leadership has:

       Implemented the fast-track charge complaints process;

       Reorganized FMC's enforcement and priorities;

       Added staff to FMC enforcement and compliance including a
            senior executive level supervisor;

       Started the VOCC Audit Program that conducts one-on-one
            meetings with carriers and MTOs to promote compliance; and

       Created a Supply Chain Monitoring program to enable the FMC
            to forecast future supply chain disruptions, and to engage with
            the ocean shipping industry on solutions to challenges before
            problems arise.

        In addition to these commission-wide efforts I, as Chairman, will
    get involved if there is a way I can help reduce congestion. To be
    effective in these efforts, it is important to be in touch with and, if
    possible, visit our Nation's major ports, and this includes the Georgia
    Ports in Savannah, which I visited in 2022. Given this first-hand
    appreciation for the challenges faced by our major ports, I advise and
    consult with other Federal officials, such as the President's Port
    Envoy housed in the Department of Transportation, to assist that
    office's efforts to relieve port congestion. In that capacity, I can be
    helpful in drawing public or industry attention to a matter. In short,
    I have and will continue to personally engage with our Nation's ports
    to proactively address congestion concerns.

        Question 2. What more would you like to see the Commission do to
    ease congestion and promote supply chain resiliency and efficiency at
    our Nation's ports?
        Answer. Since the FMC is a regulatory agency which has no authority
    to direct Federal investments, the best way to promote supply chain
    resiliency and efficiency is to ensure American shippers are empowered
    to diversify their supply chains.
        In 2021, I initiated the Supply Chain Monitoring Program to enable
    the FMC to forecast future supply chain disruptions, and to engage with
    the ocean shipping industry on solutions before problems arise. We will
    continue to build this program with a goal to harness the Commission's
    relevant industry data collections to create useful informational tools
    concerning the supply chain for the Commission and the ocean shipping
    industry.
        I also aim to build on the Commission's successes in our newly
    reorganized enforcement program and continue my focus on unlawful
    practices that negatively impact American shippers trying to make
    informed decisions about their supply chains. This new focus for the
    FMC places a strong emphasis on complex and substantive cases that have
    a larger and more meaningful impact on dissuading improper conduct by
    companies providing ocean transportation and related services. This was
    a shift from previous enforcement cases which involved primarily small
    ocean transportation intermediaries (OTIs). The deterrence impact on
    the ocean shipping industry through increased enforcement on
    substantive transportation matters ultimately keeps cargo moving and
    benefits the supply chain greatly.
        The ongoing work of all Commission programs will continue to make a
    difference in easing port congestion and building supply chain
    efficiencies and resiliency. We appreciate the Congressional support
    provided to the Commission to increase and manage these important
    programs.
                                     ______

         Response to Written Question Submitted by Hon. Deb Fischer to
                             Hon. Daniel B. Maffei
        Question. We have seen a number of supply chain disruptions over
    the past several years, most recently as a result of attacks on ships
    in the Red Sea. These disruptions often have impacts on the cost of
    consumer goods in the U.S. and the ability for U.S. farmers to export
    their products. We must build a durable supply chain that can adapt to
    these disruptions and minimize their impacts. How can improving the
    availability of data on the movement of goods in the supply chain help
    build resilience against these disruptions?
        Answer. One of the purposes of the Shipping Act, 46 U.S.C.
    Sec. Sec. 40101--46107, is to ``ensure an efficient, competitive, and
    economical transportation system in the ocean commerce of the United
    States'' and, thus, supply chain resilience is important to the FMC.\1\
    ---------------------------------------------------------------------------
        \1\ 46 U.S.C. Sec. 40101.
    ---------------------------------------------------------------------------
        The sharing of data among carriers, terminals, and shippers
    throughout the ocean-linked supply chain would increase efficiency
    since it would better empower decision makers to make the choices best
    for them. For example, if an agricultural exporter in the middle of the
    country can know enough in advance that an ocean cargo service from the
    port closest to them will be cancelled this week, then that exporter
    can determine for itself whether it is worth it to inland transport to
    another port to get out that week or simply settle for delayed service
    from the original port. Being able to see these sorts of choices also
    would contribute to resilience since it allows an importer or exporter
    to see alternatives and therefore plan for what would happen if a
    particular route were cut off for some reason.
        Since the ocean-linked supply chain system involves the entire
    world, a vast array of events--global, regional, local, and on board a
    single ship--that can affect one data point. Each unpredicted outcome
    can then affect many others. For example, a single storm could require
    several ships to detour and fall behind schedule. If they all come into
    a terminal at once, that can create congestion impacting other ships
    that never went anywhere near the storm. If there were uniform
    technological systems among industry stakeholders, it would allow
    clarity to track these compound effects. However, because ships come
    from different companies and countries and service ports all over the
    world, data systems are far from uniform.
        There are some relatively straightforward steps that can be taken
    by carriers and shippers to share some limited data to achieve a more
    efficient system. For example, during my confirmation hearing, I
    testified that it is important for agricultural exporters to have
    access to the right kind of container, whether it be an appropriately
    sized container or a refrigerated container, to ensure the cargo can be
    loaded/unloaded easily and does not spoil during the voyage.
    Agricultural cargo is often heavy in comparison to other goods, such as
    electronics or clothing. As such, smaller, 20-foot containers are
    better suited to transport these commodities because the laden weight
    of the container is lighter and can be safely loaded/unloaded with the
    existing infrastructure at our ports. All too often, however, larger
    40-foot containers are the only equipment made available to
    agricultural exporters. Refrigerated containers are necessary for the
    safe transport of perishable agricultural exports but, again, the
    availability of this type of container is often sparse when and where
    it is needed most. One way to alleviate these issues is through the
    sharing of information between supply chain participants to
    preemptively position the appropriate equipment, i.e., the proper kind
    of container, to the location where it is needed.
        By sharing container location data, supply chain participants would
    be better positioned to ensure that the right container is available to
    meet the particular needs of the cargo being shipped by our Nation's
    agricultural exporters.
                                     ______

          Response to Written Questions Submitted by Hon. Ted Budd to
                             Hon. Daniel B. Maffei
        In IMCC vs OCEMA--Docket #20-14, the Federal Maritime Commission
    (FMC) suggests that they have the authority to prevent ocean carriers
    from withdrawing from interoperable gray chassis pools.

        Question 1. Please cite the specific authorizing language enacted
    by Congress that you believe grants the FMC authority to regulate ocean
    carrier's chassis procurement decisions, including not allowing them to
    pull out of certain pools or markets.
        Answer. The Shipping Act, codified as 46 U.S.C. Sec. Sec. 40101--
    46108, is the primary Federal statute that preserves the integrity of
    U.S. maritime trade and protects the American public from unfair
    practices by ocean transportation providers. The Commission has
    exclusive jurisdiction over alleged Shipping Act violations, which
    cannot be brought in Federal district court or before another Federal
    agency. If ocean common carriers are operating under an agreement filed
    with the Commission and in effect, actions authorized by that agreement
    are insulated from liability under the Federal antitrust laws and would
    not be reviewed by the U.S. Department of Justice or the Federal Trade
    Commission.
        At issue in IMCC v. OCEMA, Docket No. 20-14, and particularly
    germane to your question, are alleged violations of 46 U.S.C.
    Sec. 41102(c). Section 41102(c) of the Shipping Act prohibits common
    carriers from ``fail[ing] to establish, observe, and enforce just and
    reasonable regulations and practices relating to or connected with
    receiving, handling, storing, or delivering property.'' \2\ The
    Commission also has statutory authority to monitor a carrier's
    activities authorized by an agreement filed with the Commission for
    compliance with the agreement's terms and for possible negative impacts
    on competition, as was the case in IMCC v. OCEMA.\3\ These statutory
    authorities empower the Commission to order ocean carriers to cease and
    desist withdrawing from interoperable chassis pools and (as part of the
    same practice) designating a single equipment provider-operated
    proprietary chassis pool if such withdrawals are determined to be
    unjust or unreasonable, as was the case in IMCC v. OCEMA.\4\
    Importantly, the Commission's Order did not make an ultimate ruling on
    this issue and instead merely affirmed the ALJ's finding that genuine
    issues of material fact precluded the determination of whether the
    specific withdrawals from interoperable gray chassis pools were
    violative of the Shipping Act.\5\
    ---------------------------------------------------------------------------
        \2\ 46 U.S.C. Sec. 41102(c).
        \3\ 46 U.S.C. Sec. Sec. 40301-07.
        \4\ See 2023 WL 1963455 at *48 (F.M.C.)
        \5\ See 2024 WL 641501 at *40-41 (F.M.C.)
    ---------------------------------------------------------------------------
        Broader questions about carriers' procurement decisions in general
    were not before the Commission in IMCC v. OCEMA. The Commission did not
    make any findings about procurement decisions that do not limit
    shippers' or motor carriers' chassis usage, or their freedom to choose
    among or negotiate with chassis providers.

        Question 2. How does prospective authority to regulate ocean
    carrier's involvement in certain chassis pools align with the ruling's
    statement that the FMC cannot direct non-regulated parties to act or
    refrain from acting in the marketplace?
        Answer. The Commission is charged with enforcing restrictions and
    prohibitions on carrier practices and policies that are unreasonable
    and unjust.\6\ When the Commission finds that an ocean carrier has
    violated these prohibitions, we are required to award relief or take
    remedial action. Respondents in IMCC v. OCEMA were ocean common
    carriers who are required to operate under these restrictions and
    prohibitions against unreasonable or unjust behavior. The Commission's
    Order addressed the Respondents' practices and policies at issue in
    this case, not the legality of conduct by other parties, such as
    chassis providers, who deal with the carriers but are not regulated
    entities under the Shipping Act.
    ---------------------------------------------------------------------------
        \6\ See 46 U.S.C. Sec. 41102(c).
    ---------------------------------------------------------------------------
        The Commission was also fulfilling its obligation to regulate
    activities carried out under ocean common carrier agreements. Two of
    the Respondents in IMCC v. OCEMA were associations of ocean common
    carriers who were acting under the authority of agreements filed with
    the Commission and subject to its ongoing review authority.\7\ When
    ocean common carriers are operating under an agreement filed with the
    Commission, actions authorized by that agreement are insulated from
    liability under the Federal antitrust laws and would not be reviewed by
    the U.S. Department of Justice or the Federal Trade Commission.\8\
    Instead, it is the responsibility of the FMC to review such practices.
    ---------------------------------------------------------------------------
        \7\ 46 U.S.C. Sec. Sec. 40301-07.
        \8\ In re Vehicle Carrier Services Antitrust Litigation, 846 F.3d
    71, 80-81 (3d Cir. 2017); Mercedes-Benz USA, LLC v. Nippon Yusen
    Kabushiki Kaisha, Civ. No. 18-13764, 2018 WL 6522487, at *4-5 (D.N.J.
    Dec. 12, 2018).
    ---------------------------------------------------------------------------
                                     ______

       Response to Written Questions Submitted by Hon. Amy Klobuchar to
                              Hon. Rebecca F. Dye
        Ocean shipping companies charge customers when containers sit at
    port for too long or are not returned on time. Between 2020 and 2022,
    nine of the largest carriers serving U.S. liner trade charged $8.9
    billion in these demurrage and detention fees. The Ocean Shipping
    Reform Act makes ocean carriers responsible for proving that any
    detention and demurrage fees they charge are fair.

        Question 1. Last week, the Federal Maritime Commission published a
    final rule on detention and demurrage billing practices, which will
    take effect in May. How will these rules protect American shippers from
    unfair and unreasonable charges?
        Answer. The new demurrage and detention rule establishes billing
    procedures and invoicing information standards to protect industry
    participants from unfair and unreasonable charges. The rule clarifies
    who can be charged for demurrage and detention, mandates a reasonable
    time-frame for when they can be charged, describes the information that
    must be included in invoices, and ensures that a remedial avenue is
    available in the event of a billing dispute. The rule requires carriers
    and marine terminal operators to issue detention and demurrage invoices
    within 30 calendar days from when charges were last incurred. One of
    the rule's most important provisions limits carriers and MTOs from
    sending the same invoices to multiple parties for demurrage or
    detention charges. The rule states that invoices can only be sent to
    one billed party.
        The rule promotes fairness and supply chain fluidity by better
    aligning charges for delays in picking up cargo or returning equipment
    in a timely manner with the appropriate incentivizing fee. It ensures
    that industry participants receive the information they need to
    understand demurrage or detention invoices in a timely fashion and
    follows the direction of Congress in OSRA that any failure by carriers
    or MTOs to include the required information in an invoice eliminates
    the obligation of the billed party to pay the charge.

        During the COVID-19 pandemic, ocean carriers were unloading
    containers at American ports but refusing American exports and
    returning to Asia with empty containers. The Ocean Shipping Reform Act
    sought to crack down on this practice of carriers unreasonably refusing
    to ship American exports.

        Question 2. The Federal Maritime Commission is currently reviewing
    comments on a supplemental rulemaking to define unreasonable conduct.
    How would the Federal Maritime Commission's proposed rules make it more
    difficult for carriers to refuse American exports?
        Answer. The draft rule currently under consideration by the
    Commission proposes to require carriers to file with the Commission a
    written report, called a ``documented export policy,'' which details
    the carrier's practices and procedures for U.S. outbound services. The
    Commission would have the authority to review this report to determine
    if carrier practices relating to exports violate statutory or
    regulatory provisions. If a carrier is alleged to have unreasonably
    refused available cargo space to exporters, the proposed rule states
    that the Commission may examine whether the carrier followed its
    documented export policy, whether it made a good faith effort to
    mitigate the impact of a refusal, and whether the refusal was based on
    legitimate transportation factors. The proposed rule provides examples
    of conduct that may be found unreasonable, such as ``blank sailings''
    (cancelled sailings) or other schedule changes with no advance notice
    or with insufficient advance notice; vessel capacity limitations not
    justified by legitimate transportation factors; a failure to alert or
    notify shippers with confirmed bookings; scheduling insufficient time
    for vessel loading so that cargo is constructively refused; providing
    inaccurate or unreliable vessel information; or categorically or
    systematically excluding exports in providing cargo space
    accommodations. If a carrier is alleged to have unreasonably refused to
    deal with respect to vessel space accommodations, the proposed rule
    explains that the Commission may examine whether the carrier followed
    its documented export policy, whether the carrier engaged in good-faith
    negotiations, and whether the refusal was based on legitimate
    transportation factors. The proposed rule provides examples of the
    kinds of conduct that may be considered unreasonable, including quoting
    rates that are too far above current market rates to be considered a
    real offer or an attempt at engaging in good faith negotiations, and
    categorically or systematically excluding exports in providing vessel
    space accommodations.
                                     ______

      Response to Written Questions Submitted by Hon. Raphael Warnock to
                              Hon. Rebecca F. Dye
    Federal Maritime Commission's Detention and Demurrage Rule
        Georgia's deepwater ports are critical to its economy. Storage fees
    are one way that Georgia's marine terminal operators incentivize
    shippers and importers to promptly remove their cargo and keep our
    ports efficient.\1\ The Federal Maritime Commission's new rule on
    Demurrage and Detention Billing Requirements institutes changes to this
    practice, and these changes may lead to confusion across the maritime
    industry, delays, and increased costs.\2\
    ---------------------------------------------------------------------------
        \1\ Report: Rules, Rates, and Practices Relating to Detention,
    Demurrage, and Free Time for Containerized Imports and Exports Moving
    Through Selected United States Ports, Federal Maritime Commission
    (April 3, 2015), https://www.fmc.gov/wp-content/uploads/2019/04/
    reportdemur
    rage.pdf at 12 (``The primary goal of reduced free time and increased
    demurrage was to encourage shorter dwell times at the terminal and
    thereby increase the overall velocity of the equipment, which reduces
    the VOCC's equipment inventory needs and its operational costs'').
        \2\ 46 C.F.R. Sec. 541.

        Question 1. Are you concerned that the Federal Maritime
    Commission's new detention and demurrage rule--specifically its invoice
    and fee mitigation provision, and refund, or waiver requests
    provisions--may lead to delays in fee collection and ultimately
    congestion at America's ports?
        Answer. Fact Finding 28, for which I served as the Commission Fact
    Finding Officer, stemmed from a petition filed at the Commission by the
    Coalition for Fair Port Practices, a broad coalition of exporters,
    importers, and others concerned with detention and demurrage fees
    charged by ocean carriers, seaports, and marine terminal operators. In
    Fact Finding 28, I recommended, and the Commission unanimously
    approved, an approach to address detention and demurrage practices
    based upon a principle--the ``incentive principle.'' If cargo owners
    cannot be further incentivized to pick up cargo or return equipment, no
    charge may be assessed. This ``incentive principle'' was embodied in a
    Commission rule.
        The billing practices of ocean carriers, ports and marine terminals
    for detention and demurrage have been particularly problematic for
    shippers and truckers, leading Congress to specifically address this
    issue in OSRA 2022. The recent billing rule is the Commission's effort
    to implement this statutory directive. The purpose of the rule is to
    bring clarity, predictability, and fairness to a complex operational
    process. The Commission conducted an extensive and extended rulemaking
    process, receiving many comments from interested stakeholders. If
    experience with the rule dictates the necessity, the Commission will
    certainly revisit the matter.
    Port Congestion Mitigation
    Georgia's deepwater ports are an economic engine for the entire state.
        Question 1. As a Commissioner with the Federal Maritime Commission,
    what actions have you taken or supported to protect against future
    supply chain bottlenecks at our Nation's ports?
        Answer. During the past five years, I have served as Commission
    Fact Finding Officer for two investigations that addressed
    international ocean supply chain bottlenecks.
        In Commission Fact Finding 28, I recommended, and the Commission
    unanimously approved, an approach to address detention and demurrage
    practices of ocean carriers, ports and marine terminal operators based
    upon a principle--the ``incentive principle.'' If cargo owners cannot
    be further incentivized to pick up cargo or return equipment, no charge
    may be assessed. This ``incentive principle'' was embodied in a
    Commission rule. Though characterized as an interpretive rule, it is
    enforceable, and the Commission has moved forward with investigations
    and cases to enforce it. I am pleased to say that this effort is
    bearing fruit and changing behavior in the marketplace.
        The second investigation, Commission Fact Finding 29, was ordered
    to address problems in the U.S. international ocean supply chain caused
    by the COVID-19 pandemic. As a result of my investigation, I
    recommended statutory amendments to the Shipping Act that were enacted
    into law. The Commission has acted on several of my recommendations and
    continues to move forward with the final Fact Finding 29
    recommendations to address supply chain problems that occurred during
    the pandemic.

        Question 2. What more would you like to see the Commission do to
    ease congestion and promote supply chain resiliency and efficiency at
    our Nation's ports?
        Answer. I am gratified that OSRA 2022 recognized and ratified the
    interpretive rule the Commission adopted based on my recommendations in
    Fact Finding 28 and gives the Commission the opportunity to further
    clarify specific practices that would be unreasonable under the general
    incentive principle. If confirmed, I look forward to the Commission
    implementing a rulemaking to achieve this end, continuing to make the
    Interpretive Rule more effective.
        If confirmed, I also look forward to focusing my efforts on
    improvements to operational processes that are critical to the systemic
    success of the U.S. international ocean supply chain: specifically,
    container return, earliest return date, and a ``notice of
    availability.'' The goal is to improve these seaport and marine
    terminal operational processes by making them clear and predictable, so
    port users can plan their businesses accordingly.
        I have been working with terminal operators at the Ports of Los
    Angeles and Long Beach, and the Port of New York and New Jersey on
    programs to address container return, earliest return date, and
    ``notice of availability.'' I plan to convene and lead FMC Supply Chain
    Innovation Teams and operational pilots to consider how these three
    operational processes may be improved. I will share this experience
    with other ports and marine terminals so that they may benefit from the
    lessons learned in these efforts. (https://www.fmc.gov/commissioner-
    dye-proposes-reforms-to-interna
    tional-ocean-supply-chain-practices/).
                                     ______

         Response to Written Question Submitted by Hon. Deb Fischer to
                              Hon. Rebecca F. Dye
        Question. We have seen a number of supply chain disruptions over
    the past several years, most recently as a result of attacks on ships
    in the Red Sea. These disruptions often have impacts on the cost of
    consumer goods in the U.S. and the ability for U.S. farmers to export
    their products. We must build a durable supply chain that can adapt to
    these disruptions and minimize their impacts. How can improving the
    availability of data on the movement of goods in the supply chain help
    build resilience against these disruptions?
        Answer. The focus for data availability should be on the critical
    pieces of information necessary to harmonize smooth supply chain
    operations. This may best be summed up in a question to seaport users,
    ``what do you need to know, and when do you need to know it?'' A good
    example of this for importers and truckers may be found in a container
    ``notice of availability'' from a seaport or marine terminal.
        An exporter, importer or trucker does not need a laundry list of
    ``shared'' ocean carrier data, but rather specific pieces of
    information containing actionable knowledge. Seaport users do not
    routinely need to know everything tracked by a vessel operator, but
    rather whether their container shipment is available for pickup from a
    seaport or marine terminal.
        Seaport digitization is most effective in mitigating supply chain
    bottlenecks when underlying operational processes are clear and
    predictable. I encourage seaport and marine terminals to institute
    operational processes that contribute most to the performance of the
    U.S. international ocean supply chain: specifically, container return,
    earliest return date, and notice of container availability. The goal
    should be to make these processes that are critical to systemic success
    of our freight delivery system clear and predictable, so port users can
    receive actionable information and plan their businesses accordingly.
    Information provided to marine terminal users concerning operational
    processes that are clear and predictable will further mitigate supply
    chain bottlenecks.
        I have been working with marine terminal operators at the Ports of
    Los Angeles and Long Beach, and the Port of New York and New Jersey on
    programs to address container return, earliest return date, and notice
    of availability. I plan to convene and lead FMC Supply Chain Innovation
    Teams and marine terminal operational process pilots to consider how
    these marine terminal processes might be improved and share the results
    with other ports and marine terminals so that they may benefit from the
    lessons learned in these efforts. (https://www.fmc.gov/commissioner-
    dye-proposes-reforms-to-international-ocean-supply-chain- practices/).
                                     ______

          Response to Written Questions Submitted by Hon. Ted Budd to
                              Hon. Rebecca F. Dye
        In IMCC vs OCEMA--Docket #20-14, the Federal Maritime Commission
    (FMC) suggests that they have the authority to prevent ocean carriers
    from withdrawing from interoperable gray chassis pools.

        Question 1. Please cite the specific authorizing language enacted
    by Congress that you believe grants the FMC authority to regulate ocean
    carrier's chassis procurement decisions, including not allowing them to
    pull out of certain pools or markets.
        Answer. The Shipping Act is the primary federal statute that
    preserves the integrity of U.S. maritime trade and protects the
    American public from unfair practices by ocean transportation
    providers. The Commission has exclusive jurisdiction over alleged
    Shipping Act violations, which cannot be brought in federal district
    court or before another federal agency. If ocean common carriers are
    operating under an agreement filed with the Commission, then actions
    authorized by that agreement are insulated from liability under the
    federal antitrust laws and would not be reviewed by the U.S. Department
    of Justice or the Federal Trade Commission.
        The Commission is charged with enforcing restrictions and
    prohibitions on carrier practices and policies that are unreasonable
    and unjust. See 46 U.S.C. Sec. 41102(c). In addition, when carriers may
    be engaged in activities authorized by an agreement filed with the
    Commission, as was the case in Intermodal v. OCEMA, Docket No. 20-14,
    the Commission has statutory authority to monitor those practices for
    compliance with the agreement's terms and for possible negative impacts
    on competition. 46 U.S.C. Sec. Sec. 40301-40307. Federal courts have
    held that ``activities described in Sec. 40301 that are undertaken
    pursuant to agreements filed with the FMC are immune from federal
    antitrust laws.'' In re Vehicle Carrier Services Antitrust Litigation,
    846 F.3d 71, 80-81 (3d Cir. 2017); Mercedes-Benz USA, LLC v. Nippon
    Yusen Kabushiki Kaisha, Civ. No. 18-13764, 2018 WL 6522487, at *4-5
    (D.N.J. Dec. 12, 2018). This statutory immunity extends even to
    activities that the parties reasonably believe are covered by an
    agreement filed with the Commission and in effect or exempt from
    filing. 46 U.S.C. Sec. 40307(a)(3). Two of the respondents in
    Intermodal were associations of ocean common carriers acting under the
    authority of agreements filed with the Commission and subject to its
    ongoing review. The individual carriers who collectively agreed to
    abide by the Rules adopted by one of the respondent organizations were
    only able to do so without risking a violation of federal antitrust law
    because they were acting under the authority of an agreement filed with
    the Commission.
        The narrow issue that was before the Commission in Intermodal Motor
    Carriers Conference v. OCEMA, Docket No. 20-14, was that multiple
    individual ocean common carriers and two ocean carrier associations
    violated Shipping Act restrictions against unjust and unreasonable
    practices by withdrawing from interoperable pools and (as part of the
    same move or practice) designating proprietary chassis pools (operated
    by a single equipment provider) as the chassis supplier for that
    carrier's containers. It was in that context that the Commission found
    that it has jurisdiction to examine the reasonableness of carriers'
    decisions to withdraw from an interoperable chassis pool and designate
    as its replacement a single proprietary pool. That withdrawal decision
    directly impacts motor carriers and shippers, constrains their choices,
    and determines the rules they must follow and charges they incur for
    daily usage of the chassis.
        What was not before the Commission in Intermodal were broader
    questions about carriers' procurement decisions in general. The
    Commission did not make any findings about procurement decisions that
    do not limit shippers' or motor carriers' chassis usage, or their
    freedom to choose among or negotiate with chassis providers.

        Question 2. How does prospective authority to regulate ocean
    carrier's involvement in certain chassis pools align with the ruling's
    statement that the FMC cannot direct non- regulated parties to act or
    refrain from acting in the marketplace?
        Answer. All the respondents in the Intermodal case were ocean
    common carriers who operate under rules mandated by the Shipping Act.
    The Commission is charged with enforcing restrictions and prohibitions
    on carrier practices and policies that are unreasonable and unjust. See
    46 U.S.C. Sec. 41102(c).
        The Commission has a duty to adjudicate allegations of Shipping Act
    violations and award relief or take remedial action if violations are
    found. That is all that the Commission acted on and determined in this
    case. The Commission did not rule on the legality of conduct by other
    parties who deal with the carriers but are not regulated entities under
    the Shipping Act and were not respondents in the proceeding.
        The Commission was also fulfilling its obligation to regulate
    activities carried out under ocean common carrier agreements. Two of
    the respondents in Intermodal were associations of ocean common
    carriers who were acting under the authority of agreements filed with
    the Commission and subject to its ongoing review authority. When ocean
    common carriers are operating under an agreement filed with the
    Commission, actions authorized by that agreement are insulated from
    liability under the federal antitrust laws and would not be reviewed by
    the U.S. Department of Justice or the Federal Trade Commission.

                                      [all]