(b) MEMBERSHIP.

(1) The Commission shall be composed of 9 voting members appointed not more than 60 days after the date of the enactment of this Act as follows:

(A) One person from the Department of Labor appointed by the Secretary of Labor.

(B) One person from the Maritime Administration appointed by the Secretary of Transportation.

(C) One person from the State Department appointed by the Secretary of State.

(D) One person from the National Labor Relations Board appointed by the Secretary of Labor.

(E) One person from the Immigration and Naturalization Service appointed by the Commissioner of the Immigration and Naturalization Service.

(F) One member each shall be appointed by the Speaker of the House of Representatives and the majority leader of the Senate, one member shall be appointed by the minority leader of the House of Representatives subject to the approval of the Speaker of the House of Representatives, and one member shall be appointed by the minority leader of the Senate subject to the approval of the majority leader of the Senate.

Members appointed under subparagraph (F) shall be appointed by virtue of demonstrated expertise in relevant maritime, labor, and foreign relations issues.

(2) Any vacancy on the Commission shall be filled in the manner in which the original appointment was made.

(3) The Commission shall elect a chairperson and a vice chairperson from among its members.

(4) Six members of the Commission shall constitute a quorum for all purposes, except that a lesser number may constitute a quorum for the purpose of holding hearings.

(c) COMPENSATION.

(1) Members of the Commission shall serve without compensation.

(2) Members of the Commission shall be allowed reasonable travel expenses, including a per diem allowance, in accordance with section 5703 of title 5, United States Code, while performing duties of the Commission.

(d) POWERS.

(1) The Commission shall first meet not more than 30 days after the date on which members are appointed and the Commission shall meet thereafter upon the call of the chairperson or a majority of the members.

(2) The Commission may hold such hearings, sit and act at such times and places, take such testimony, and receive such evidence as the Commission considers appropriate. The Commission may administer oaths or affirmations to witnesses appearing before it.

(3) The Commission may secure directly from any Federal agency information necessary to enable it to carry out this Act. Upon request of the chairperson or vice chairperson of the Commission, the head of such agency shall furnish such information to the Commission.

(4) The Commission may appoint an Executive Director from the personnel of any Federal agency to assist the Commission from the personnel of any Federal agency to assist the Commission in carrying out its duties.

(5) Upon the request of the Commission, the head of any Federal agency may make available to the Commission any of the facilities and services of such agency.

(6) Upon the request of the Commission. the head of any Federal agency may detail any of the personnel of such agency to assist the Commission in carrying out its duties.

(e) TERMINATION.-The Commission shall terminate 30 days after the date of the submission of its report to the Congress.

Statement of the Hon. William L. Clay
Before the Subcommittee on Merchant Marine

Hearing on H.R. 1126

Wednesday, September 23, 1992

record

Mr. Chairman, members of the Subcommittee on Merchant Marine, as the sponsor of H.R. 1126, I want to begin by expressing my appreciation to the members of the Merchant Marine Committee for the support they have shown for this legislation. Nineteen members of the Committee, from both sides of the aisle, have cosponsored the legislation. The Honorable Walter Jones numbers among those cosponsors. The support Chairman Jones showed for H.R. 1126 was especially important. It was also gratifying. His absence will be deeply felt.

As introduced in the 102nd Congress, H.R. 1126 extends coverage of the Fair Labor Standards Act and the National Labor Relations Act for a five-year period to foreign flagships operating principally in American commerce. During that interim it provides for a commission to determine how best to protect the basic rights of workers in this industry. Finally, the bill ensures that the commission will report its findings to the Congress in sufficient time for the Congress to take appropriate action before workers are left, once again, with no protection at all.

As originally introduced, this legislation simply extended coverage of the National Labor Relations Act, protecting the right of workers to organize for their mutual benefit, and the Fair Labor Standards Act, guaranteeing minimum wages, to foreign flag vessels operating primarily in American commerce. The sunset provisions reflect an amendment offered by Congressman Grandy that was adopted in the 101st Congress. In addition, in this Congress, the Labor Standards Subcommittee adopted an amendment exempting container cargo ships from the provisions of the legislation. These vessels have not demonstrated the horrendous labor practices we have seen in other parts of the industry.

Frankly, I have reservations regarding both the sunset provisions and the exemption of parts of the maritime industry. I have much greater concern, however, about a system that has effectively left labor practices in this industry wholly unregulated.

American flagships, subject to American labor laws, must afford fair wages and basic rights to their employees. Their competitors, though primarily engaged in United States' commerce and, in many cases, American owned, escape the requirements of American law and evade the requirements of any effective labor regulation by adopting foreign flags of convenience. The members of this Committee are fully aware of the consequences this has had for American seamen and American flagships. For too many of the sailors employed in American commerce, the consequences that the system has had on labor practices in the industry have been equally devastating.

In two Congresses, subcommittees of the Education and Labor Committee have heard testimony of workers being required to work 18 and 20 hours a day for less than a dollar an hour. We have heard of living conditions so unsanitary as to threaten life. We have heard of sailors being forced to provide kickbacks to labor contractors for the privilege of working. We have heard of sailors being abandoned in foreign ports and blackballed from the industry for seeking to improve intolerable and inhuman conditions. Clearly, this nation not only has the right, but the moral duty, to ensure that, where such workers are engaged primarily in the commerce of the United States, such vestiges of 19th century servitude are eradicated.

Again, I want to express my appreciation to the members of the Subcommittee for the consideration you have given this legislation.

This letter provides the views of the Department of Justice on H.R. 1126, a bill "to extend the coverage of certain Federal labor laws to foreign flagships." While the Department defers comment on the merits of this legislation to the Department of Labor, the Department of Transportation, and the Department of State, we believe that section 2 (d)(3) of the bill raises serious constitutional concerns.

The

Section 2(d) (3) would give the Commission on Compliance and Enforcement the power to secure directly from "any Federal agency information necessary to enable it to carry out this Act." Department objects to the breadth of this provision and its failure to recognize the President's constitutional right and duty to withhold from disclosure certain information. The President must retain the authority to withhold in the public interest information whose disclosure might significantly impair the conduct of foreign relations, the national security, the deliberative processes of the Executive Branch or the performance of its constitutional duties.

The Office of Management and Budget has advised this Department that there is no objection to the submission of this report.

Sincerely,

المقال

W. Lee Rawls

Assistant Attorney General

!

I write in response to your letter of March 7, 1991,

seeking the views of the Administration on H.R. 1126, a bill to extend the coverage of certain federal labor laws to foreign flag ships.

This bill raises difficult issues in the area of international law and custom, specifically regarding the extension of U.S. law and regulation beyond national borders. Longstanding, fundamental principles of international law and comity recognize that the nationality of a vessel is determined by its flag (or registry), and that the flag state has exclusive jurisdiction over shipboard matters relating to the internal order and economy of the vessel. Applying U.S. domestic law to regulate shipboard labor relations and to establish minimum wages and maximum hours of work for foreign seafarers would clearly contravene "the well-established rule of international law that the law of the flag state ordinarily governs the internal affairs of a ship." (McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21 (1963).)) See also Section 502, Restatement (third) of the Foreign Relations Law of the United States (1987) ("The flag state may exercise jurisdiction to prescribe, to adjudicate, and to enforce, with respect to the ship or any conduct that takes place on the ship.")

The United States has long been subject to sharp criticism, and threats of retaliatory action, from even its closest allies and trading partners, over what are perceived to be unwarranted assertions of U.S. jurisdiction over persons and activities in their territory or with respect to that over which they otherwise may claim primacy of jurisdiction under international law. This bill would certainly elicit such objections.

Vessels are inherently mobile and typically spend most of their time on the high seas. In order to maintain stability of enforcement of international maritime law, international

The Honorable

Walter B. Jones, Chairman,

Committee on Merchant Marine and Fisheries,

House of Representatives.

2

conventions codifying long established principles have been created to ensure uniform application of these regulations to all vessels operating worldwide. Organizations such as the International Maritime Organization, and the International Labor Organization have dealt with issues governing

jurisdiction over the employment relationship between master and crew.

The U.S. is already party to an international minimum labor standards convention governing seafarers, ILO Convention 147. This treaty establishes an internationally acceptable standard allowing port states to exercise appropriate authority in response to complaints involving working conditions by foreign seafarers on foreign flag vessels in the port State's waters.

The mobility of a vessel, in particular its ability to change routings, ports of operations, etc., as well as the economics of ship operations, could limit the effectiveness of the bill in meeting its objectives. By targeting vessels owned and controlled by U.S. corporations, the bill could disadvantage operators of American controlled foreign vessels, vessels which are available to the United States in time of war or national emergency. By affecting the costs of providing shipping services, the bill would impact users of shipping services throughout the economy.

While it may be appropriate to provide a termination date for legislation, and to study the effects of the legislation, the legal and international consequences of this bill are known. The extent of the bill's impact on various economic questions appears amenable to prior quantification. Therefore, the provisions for a limited effective period for the measure and for a study commission, do not lessen our objections to the bill.

The bill would require the appointment of one person from the Department of State to the Commission on Compliance and Enforcement for a period of not more than 30 months. FMP advises that, if we assume the Department would delegate a DAS level position for one year, the estimate of costs to the Department is $156,000 per annum. This estimate includes $20,000 for travel funds and $10,000 for supplies, materials and other support costs.

Due to the concerns outlined above, the Administration opposes H.R. 1126.

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