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S. 3580: Ocean Shipping Reform Act of 2022


The text of the bill below is as of Mar 24, 2022 (Reported by Senate Committee).


II

Calendar No. 311

117th CONGRESS

2d Session

S. 3580

IN THE SENATE OF THE UNITED STATES

February 3, 2022

(for herself, Mr. Thune, Ms. Baldwin, Mr. Hoeven, Ms. Stabenow, Mr. Marshall, Mr. Peters, Mr. Moran, Mr. Blumenthal, Mr. Young, Mr. Kelly, Mrs. Blackburn, Mr. Booker, Ms. Ernst, Ms. Smith, Mr. Crapo, Ms. Cortez Masto, Mr. Braun, Mr. Warnock, Mr. Risch, Mr. Bennet, Mr. Cramer, Mr. Wyden, Mr. Blunt, Mr. Van Hollen, Mr. Boozman, Mr. Padilla, Mrs. Fischer, and Mr. Hickenlooper) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation

March 24, 2022

Reported by , with an amendment

Strike out all after the enacting clause and insert the part printed in italic

A BILL

To amend title 46, United States Code, with respect to prohibited acts by ocean common carriers or marine terminal operators, and for other purposes.

1.

Short title

This Act may be cited as the Ocean Shipping Reform Act of 2022.

2.

Purposes

Section 40101 of title 46, United States Code, is amended—

(1)

by striking paragraph (2) and inserting the following:

(2)

ensure an efficient, competitive, and economical transportation system in the ocean commerce of the United States;

;

(2)

in paragraph (3), by inserting and supporting commerce before needs; and

(3)

by striking paragraph (4) and inserting the following:

(4)

promote the growth and development of United States exports.

.

3.

Service contracts

Section 40502(c) of title 46, United States Code, is amended—

(1)

in paragraph (7) by striking ; and and inserting a semicolon;

(2)

in paragraph (8) by striking the period and inserting ; and; and

(3)

by adding at the end the following:

(9)

any other essential terms that the Federal Maritime Commission determines necessary or appropriate.

.

4.

Shipping exchange registry

(a)

In general

Chapter 405 of title 46, United States Code, is amended by adding at the end the following:

40504.

Shipping exchange registry

(a)

In general

No person may operate a shipping exchange involving ocean transportation in the foreign commerce of the United States unless the shipping exchange is registered as a national shipping exchange under the terms and conditions provided in this section and the regulations issued pursuant to this section.

(b)

Registration

A person shall register a shipping exchange by filing with the Federal Maritime Commission (referred to in this section as the Commission) an application for registration in such form as the Commission, by rule, may prescribe containing the rules of the exchange and such other information and documents as the Commission, by rule, may prescribe as necessary or appropriate in the public interest.

(c)

Exemption

The Commission may exempt, conditionally or unconditionally, a shipping exchange from registration under this section if the Commission finds that the shipping exchange is subject to comparable, comprehensive supervision and regulation by the appropriate governmental authorities in a foreign country where the shipping exchange is headquartered.

(d)

Regulations

Not later than 3 years after the date of enactment of the Ocean Shipping Reform Act of 2022, the Commission shall issue regulations pursuant to subsection (a), which shall set standards necessary to carry out subtitle IV of this title for registered national shipping exchanges, including the minimum requirements for service contracts established under section 40502 of this title.

(e)

Definition of shipping exchange

In this section, the term shipping exchange means a service or platform for shippers to communicate freight traffic and capacity information to common carriers.

.

(b)

Applicability

The registration requirement under section 40504 of title 46, United States Code (as added by subsection (a)), shall take effect on the date on which the Federal Maritime Commission states the rule is effective in the regulations issued under such section.

(c)

Clerical amendment

The analysis for chapter 405 of title 46, United States Code, is amended by adding at the end the following:

40504. Shipping exchange registry.

.

5.

Prohibition on retaliation

Section 41102 of title 46, United States Code, is amended by adding at the end the following:

(d)

Prohibition on retaliation

(1)

In general

A common carrier, marine terminal operator, or ocean transportation intermediary, either alone or in conjunction with any other person, directly or indirectly, may not retaliate against a shipper, a motor carrier, or an agent of such a shipper or carrier by taking any action described in paragraph (2) because the shipper or motor carrier has patronized another common carrier, marine terminal operator, or ocean transportation intermediary, or has filed a complaint, or for any other reason.

(2)

Actions

The actions described in this paragraph are—

(A)

refusing, or threatening to refuse, cargo space accommodations when available; or

(B)

resorting to any other prohibited actions under section 41104(a)(3).

.

6.

Public disclosure

Section 46106 of title 46, United States Code, is amended by adding at the end the following:

(d)

Public disclosures

The Federal Maritime Commission shall publish, and annually update, on the website of the Commission—

(1)

all findings by the Commission of false certifications by common carriers or marine terminal operators under section 41104(a)(15) of this title; and

(2)

all penalties imposed or assessed against common carriers or marine terminal operators, as applicable, under sections 41107, 41108, and 41109, listed by each common carrier or marine terminal operator.

.

7.

Common carriers

(a)

In general

Section 41104 of title 46, United States Code, is amended—

(1)

in subsection (a)—

(A)

in the matter preceding paragraph (1), by striking may not and inserting shall not;

(B)

by striking paragraph (3) and inserting the following:

(3)

with due regard being given to the proper loading of the vessel and the available tonnage, refuse cargo space accommodations when available, or resort to other unfair or unjustly discriminatory methods;

;

(C)

in paragraph (5), by striking in the matter of rates or charges and inserting against any commodity group or type of shipment or in the matter of rates or charges;

(D)

in paragraph (9), by inserting against any commodity group or type of shipment or in the matter of rates or charges after disadvantage;

(E)

in paragraph (10), by adding , including with respect to vessel space accommodations after negotiate;

(F)

in paragraph (12) by striking ; or and inserting a semicolon;

(G)

in paragraph (13) by striking the period and inserting a semicolon; and

(H)

by adding at the end the following:

(14)

assess any party for a charge that is inconsistent or does not comply with all applicable provisions of part 545 of title 46, Code of Federal Regulations (or successor regulations); or

(15)

invoice any party for demurrage or detention charges, unless accompanied by an accurate certification that such charges comply with—

(A)

all provisions of part 545 of title 46, Code of Federal Regulations (or successor regulations); and

(B)

the findings of the final rule published on May 18, 2020, entitled Interpretive Rule on Demurrage and Detention Under the Shipping Act (85 Fed. Reg. 29638).

; and

(2)

by adding at the end the following:

(d)

Violation of prohibition

If the Commission determines, after an investigation in response to a submission under section 41310, that a certification under subsection (a)(15) was inaccurate or false, penalties under section 41107 shall be applied.

(e)

Certification

Failure to include a certification under subsection (a)(15) alongside any demurrage or detention charge shall eliminate any obligation of the charged party to pay the applicable charge.

.

(b)

Rulemaking on demurrage or detention

(1)

In general

Not later than 1 year after the date of enactment of this Act, the Federal Maritime Commission shall issue rulemaking further defining prohibited practices by common carriers, marine 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.

(2)

Contents

The rulemaking under paragraph (1) shall seek to further clarify reasonable rules and practices related to the assessment of detention and demurrage charges to address the issues identified in the final rule published on May 18, 2020, titled Interpretive Rule on Demurrage and Detention Under the Shipping Act (85 Fed. Reg. 29638), including a determination of which parties may be appropriately billed for any demurrage, detention, or other similar per container charges.

(c)

Rulemaking on unfair or unjustly discriminatory methods

Not later than 1 year after the date of enactment of this Act, the Federal Maritime Commission shall issue rulemaking defining unfair or unjustly discriminatory methods under section 41104(a)(3) of title 46, as amended by this section.

(d)

Rulemaking on unreasonably refuse To deal or negotiate with respect to vessel space accommodations

Not later than 1 year after the date of enactment of this Act, the Federal Maritime Commission shall issue rulemaking defining unreasonable refusal to deal or negotiate with respect to vessel space under section 41104(a)(10) of title 46, as amended by this section.

8.

Assessment of penalties or refunds

(a)

In general

Title 46, United States Code, is amended—

(1)

in section 41107—

(A)

in the section heading, by inserting or refunds after penalties;

(B)

in subsection (a), by inserting or, in addition to or in lieu of a civil penalty, is liable for the refund of a charge after civil penalty; and

(C)

in subsection (b), by inserting or, in addition to or in lieu of a civil penalty, the refund of a charge, after civil penalty; and

(2)

in section 41109—

(A)

in the section heading, by inserting or refunds after penalties;

(B)

in subsection (a)—

(i)

by inserting or, in addition to or in lieu of a civil penalty, order the refund of a charge after this part; and

(ii)

by inserting or refund of such charge after conditions, a civil penalty;

(C)

by striking subsection (c);

(D)

by redesignating subsections (d) through (g) as subsections (c) through (f);

(E)

in subsection (d), as redesignated by subparagraph (D), by inserting or order a refund of a charge after civil penalty;

(F)

in subsection (e), as redesignated by subparagraph (D), by inserting or who is ordered to refund a charge after civil penalty is assessed; and

(G)

in subsection (f), as redesignated by subparagraph (D)—

(i)

by inserting or pay a refund of a charge after of a civil penalty; and

(ii)

by inserting or the amount ordered to be refunded after amount assessed.

(b)

Clerical amendments

The analysis for chapter 411 of title 46, United States Code, is amended—

(1)

by striking the item relating to section 41107 and inserting the following:

41107. Monetary penalties or refunds.

;

and
(2)

by striking the item relating to section 41109 and inserting the following:

41109. Assessment of penalties or refunds.

.

9.

Data collection

(a)

In general

Chapter 411 of title 46, United States Code, is amended by adding at the end the following:

41110.

Data collection

(a)

In general

Common carriers covered under this chapter shall submit to the Federal Maritime Commission a calendar quarterly report that describes the total import and export tonnage and the total loaded and empty 20-foot equivalent units per vessel (making port in the United States, including any territory or possession of the United States) operated by such common carrier.

(b)

Prohibition on duplication

Data required to be reported under subsection (a) may not duplicate information—

(1)

submitted to the Corps of Engineers pursuant to section 11 of the Act entitled An Act authorizing the construction, repair, and preservation of certain public works on rivers and harbors, and for other purposes, approved September 22, 1922 (33 U.S.C. 555), by an ocean common carrier acting as a vessel operator; or

(2)

submitted pursuant to section 481 of the Tariff Act of 1930 (19 U.S.C. 1481) to Customs and Border Protection by merchandise importers.

.

(b)

Clerical amendment

The analysis for chapter 411 of title 46, United States Code, is amended by adding at the end the following:

41110. Data collection.

.

10.

Charge complaints

(a)

In general

Chapter 413 of title 46, United States Code, is amended by adding at the end the following:

41310.

Charge complaints

(a)

In general

A person may submit to the Federal Maritime Commission, and the Commission shall accept, information concerning charges. The information submitted to the Commission may include the bill of lading numbers, certifications, or any other relevant information.

(b)

Investigation

Upon receipt of a submission under subsection (a), with respect to a charge assessed by a common carrier, the Commission shall promptly investigate the charge with regard to compliance with section 41104(a). The common carrier shall—

(1)

be provided an opportunity to submit additional information related to the charge in question; and

(2)

bear the burden of establishing the reasonableness of any demurrage or detention charges which are the subject of any complaint proceeding challenging a common carrier or marine terminal operator demurrage or detention charge pursuant to section 545.5 of title 46, Code of Federal regulations (or successor regulations).

(c)

Refund

Upon receipt of submissions under subsection (a), if the Commission determines that a charge does not comply with section 41104(a), the Commission shall promptly order the refund of any demurrage and detention charges paid.

(d)

Penalties

In the event of a finding that a charge does not comply with section 41104(a) after submission under subsection (a), a civil penalty under section 41107 shall be applied to the common carrier making such charge.

.

(b)

Clerical amendment

The analysis for chapter 413 of title 46, United States Code, is amended by adding at the end the following:

41310. Charge complaints.

.

11.

Investigations

(a)

Amendments

Section 41302 of title 46, United States Code, is amended—

(1)

in subsection (a), in the first sentence, by striking or agreement and inserting agreement, fee, or charge; and

(2)

in subsection (b)—

(A)

in the subsection heading, by striking Agreement and inserting Agreement, fee, or charge; and

(B)

by inserting , fee, or charge after agreement.

(b)

Report

The Federal Maritime Commission shall publish on a publicly available website of the Commission a report containing the results of the investigation entitled Fact Finding No. 29, International Ocean Transportation Supply Chain Engagement.

12.

Award of additional amounts

Section 41305 of title 46, United States Code, is amended—

(1)

in subsection (c)—

(A)

by striking section 41102(b), through or (3) and inserting subsection (b), (c), or (d) of section 41102, paragraph (3) or (6) of section 41104(a), or paragraph (1) or (3) of section 41105; and

(B)

by inserting or if the Commission determined that a violation of section 41104(a) of this title was made, after of this title; and

(2)

in subsection (d), by striking section 41104(4)(A) or (B) and inserting subparagraph (A) or (B) of section 41104(a)(4).

13.

Enforcement of reparation orders

(a)

In general

Section 41309 of title 46, United States Code, is amended—

(1)

in the section heading, by inserting or refund after reparation;

(2)

in subsection (a)—

(A)

by inserting or refund of a charge after payment of reparation; and

(B)

by inserting or to whom the refund of the charge was ordered after award was made; and

(3)

in subsection (b), by inserting or refund of such a charge after award of reparation.

(b)

Clerical amendment

The analysis for chapter 413 of title 46, United States Code, is amended by striking the item relating to section 41309 and inserting the following:

41309. Enforcement of reparation or refund orders.

.

14.

Annual report to Congress

Section 46106(b) of title 46, United States Code, is amended—

(1)

in paragraph (5) by striking and at the end;

(2)

in paragraph (6), by striking the period and inserting ; and; and

(3)

by adding at the end the following:

(7)

an identification of any otherwise concerning practices by ocean common carriers, particularly such carriers that are controlled carriers, that are—

(A)

State-owned or State-controlled enterprises; or

(B)

owned or controlled by, a subsidiary of, or otherwise related legally or financially (other than a minority relationship or investment) to a corporation based in a country—

(i)

identified as a nonmarket economy country (as defined in section 771(18) of the Tariff Act of 1930 (19 U.S.C. 1677(18))) as of the date of enactment of this paragraph;

(ii)

identified by the United States Trade Representative in the most recent report required by section 182 of the Trade Act of 1974 (19 U.S.C. 2242) as a priority foreign country under subsection (a)(2) of that section; or

(iii)

subject to monitoring by the United States Trade Representative under section 306 of the Trade Act of 1974 (19 U.S.C. 2416).

.

15.

Technical amendments

(a)

Additional penalties

Section 41108(a) of title 46, United States Code, is amended by striking section 41104(1), (2), or (7) and inserting paragraph (1), (2), or (7) of section 41104(a).

(b)

Assessment of penalties

Section 41109(c) of title 46, United States Code, is amended by striking section 41104(1) or (2) and inserting paragraph (1) or (2) of section 41104(a).

1.

Short title

This Act may be cited as the Ocean Shipping Reform Act of 2022.

2.

Purposes

Section 40101 of title 46, United States Code, is amended—

(1)

by striking paragraph (2) and inserting the following:

(2)

ensure an efficient, competitive, and economical transportation system in the ocean commerce of the United States;

;

(2)

in paragraph (3), by inserting and supporting commerce after needs; and

(3)

by striking paragraph (4) and inserting the following:

(4)

promote the growth and development of United States exports through a competitive and efficient system for the carriage of goods by water in the foreign commerce of the United States, and by placing a greater reliance on the marketplace.

.

3.

Service contracts

Section 40502(c) of title 46, United States Code, is amended—

(1)

in paragraph (7), by striking ; and and inserting a semicolon;

(2)

in paragraph (8), by striking the period and inserting ; and; and

(3)

by adding at the end the following:

(9)

any other essential terms that the Federal Maritime Commission determines necessary or appropriate through a rulemaking process.

.

4.

Shipping exchange registry

(a)

In general

Chapter 405 of title 46, United States Code, is amended by adding at the end the following:

40504.

Shipping exchange registry

(a)

In general

No person may operate a shipping exchange involving ocean transportation in the foreign commerce of the United States unless the shipping exchange is registered as a national shipping exchange under the terms and conditions provided in this section and the regulations issued pursuant to this section.

(b)

Registration

A person shall register a shipping exchange by filing with the Federal Maritime Commission an application for registration in such form as the Commission, by rule, may prescribe, containing the rules of the exchange and such other information and documents as the Commission, by rule, may prescribe as necessary or appropriate to complete a shipping exchange’s registration.

(c)

Exemption

The Commission may exempt, conditionally or unconditionally, a shipping exchange from registration under this section if the Commission finds that the shipping exchange is subject to comparable, comprehensive supervision and regulation by the appropriate governmental authorities in a foreign country where the shipping exchange is headquartered.

(d)

Regulations

Not later than 3 years after the date of enactment of the Ocean Shipping Reform Act of 2022, the Commission shall issue regulations pursuant to subsection (a), which shall set standards necessary to carry out subtitle IV of this title for registered national shipping exchanges, including the minimum requirements for service contracts established under section 40502 of this title.

(e)

Definition of shipping exchange

In this section, the term shipping exchange means a platform (digital, over-the-counter, or otherwise) that connects shippers with common carriers for the purpose of entering into underlying agreements or contracts for the transport of cargo, by vessel or other modes of transportation.

.

(b)

Applicability

The registration requirement under section 40504 of title 46, United States Code (as added by subsection (a)), shall take effect on the date on which the Federal Maritime Commission states the rule is effective in the regulations issued under such section.

(c)

Clerical amendment

The analysis for chapter 405 of title 46, United States Code, is amended by adding at the end the following:

40504. Shipping exchange registry.

.

5.

Prohibition on retaliation

Section 41102 of title 46, United States Code, is amended by adding at the end the following:

(d)

Retaliation and other discriminatory actions

A common carrier, marine terminal operator, or ocean transportation intermediary, acting alone or in conjunction with any other person, directly or indirectly, may not—

(1)

retaliate against a shipper, an agent of a shipper, an ocean transportation intermediary, or a motor carrier by refusing, or threatening to refuse, an otherwise-available cargo space accommodation; or

(2)

resort to any other unfair or unjustly discriminatory action for—

(A)

the reason that a shipper, an agent of a shipper, an ocean transportation intermediary, or motor carrier has—

(i)

patronized another carrier; or

(ii)

filed a complaint against the common carrier, marine terminal operator, or ocean transportation intermediary; or

(B)

any other reason.

.

6.

Public disclosure

Section 46106 of title 46, United States Code, is amended by adding at the end the following:

(d)

Public disclosures

The Federal Maritime Commission shall publish, and annually update, on the website of the Commission—

(1)

all findings by the Commission of false detention and demurrage invoice information by common carriers under section 41104(a)(15) of this title; and

(2)

all penalties imposed or assessed against common carriers, as applicable, under sections 41107, 41108, and 41109, listed by each common carrier.

.

7.

Common carriers

(a)

In general

Section 41104 of title 46, United States Code, is amended—

(1)

in subsection (a)—

(A)

in the matter preceding paragraph (1), by striking may not and inserting shall not;

(B)

by striking paragraph (3) and inserting the following:

(3)

unreasonably refuse cargo space accommodations when available, or resort to other unfair or unjustly discriminatory methods;

;

(C)

in paragraph (5), by striking in the matter of rates or charges and inserting against any commodity group or type of shipment or in the matter of rates or charges;

(D)

in paragraph (10), by adding , including with respect to vessel space accommodations provided by an ocean common carrier after negotiate;

(E)

in paragraph (12) by striking ; or and inserting a semicolon;

(F)

in paragraph (13) by striking the period and inserting a semicolon; and

(G)

by adding at the end the following:

(14)

assess any party for a charge that is inconsistent or does not comply with all applicable provisions and regulations, including subsection (c) of section 41102 or part 545 of title 46, Code of Federal Regulations (or successor regulations);

(15)

invoice any party for demurrage or detention charges unless the invoice includes information as described in subsection (d) showing that such charges comply with—

(A)

all provisions of part 545 of title 46, Code of Federal Regulations (or successor regulations); and

(B)

applicable provisions and regulations, including the principles of the final rule published on May 18, 2020, entitled Interpretive Rule on Demurrage and Detention Under the Shipping Act (or successor rule); or

(16)

for service pursuant to a service contract, give any undue or unreasonable preference or advantage or impose any undue or unreasonable prejudice or disadvantage against any commodity group or type of shipment.

; and

(2)

by adding at the end the following:

(d)

Detention and demurrage invoice information

(1)

Inaccurate invoice

If the Commission determines, after an investigation in response to a submission under section 41310, that an invoice under subsection (a)(15) was inaccurate or false, penalties or refunds under section 41107 shall be applied.

(2)

Contents of invoice

An invoice under subsection (a)(15), unless otherwise determined by subsequent Commission rulemaking, shall include accurate information on each of the following, as well as minimum information as determined by the Commission:

(A)

Date that container is made available.

(B)

The port of discharge.

(C)

The container number or numbers.

(D)

For exported shipments, the earliest return date.

(E)

The allowed free time in days.

(F)

The start date of free time.

(G)

The end date of free time.

(H)

The applicable detention or demurrage rule on which the daily rate is based.

(I)

The applicable rate or rates per the applicable rule.

(J)

The total amount due.

(K)

The email, telephone number, or other appropriate contact information for questions or requests for mitigation of fees.

(L)

A statement that the charges are consistent with any of Federal Maritime Commission rules with respect to detention and demurrage.

(M)

A statement that the common carrier’s performance did not cause or contribute to the underlying invoiced charges.

(e)

Safe harbor

If a non-vessel operating common carrier passes through to the relevant shipper an invoice made by the ocean common carrier, and the Commission finds that the non-vessel operating common carrier is not otherwise responsible for the charge, then the ocean common carrier shall be subject to refunds or penalties pursuant to subsection (d)(1).

(f)

Elimination of charge obligation

Failure to include the information required under subsection (d) on an invoice with any demurrage or detention charge shall eliminate any obligation of the charged party to pay the applicable charge.

.

(b)

Rulemaking on demurrage or detention

(1)

In general

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, marine 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. The Federal Maritime Commission shall issue a final rule defining such practices not later than 1 year after the date of enactment of this Act.

(2)

Contents

The rule under paragraph (1) shall seek to further clarify reasonable rules and practices related to the assessment of detention and demurrage charges to address the issues identified in the final rule published on May 18, 2020, entitled Interpretive Rule on Demurrage and Detention Under the Shipping Act (or successor rule), including a determination of which parties may be appropriately billed for any demurrage, detention, or other similar per container charges.

(c)

Rulemaking on unfair or unjustly discriminatory methods

Not later than 60 days after the date of enactment of this Act, the Federal Maritime Commission shall initiate a rulemaking defining unfair or unjustly discriminatory methods under section 41104(a)(3) of title 46, United States Code, as amended by this section. The Federal Maritime Commission shall issue a final rule not later than 1 year after the date of enactment of this Act.

(d)

Rulemaking on unreasonable refusal to deal or negotiate with respect to vessel space accommodations

Not later than 30 days after the date of enactment of this Act, the Federal Maritime Commission, in consultation with the Commandant of the United States Coast Guard, shall initiate a rulemaking defining unreasonable refusal to deal or negotiate with respect to vessel space under section 41104(a)(10) of title 46, as amended by this section. The Federal Maritime Commission shall issue a final rule not later than 6 months after the date of enactment of this Act.

8.

Assessment of penalties or refunds

(a)

In general

Title 46, United States Code, is amended—

(1)

in section 41107—

(A)

in the section heading, by inserting or refunds after penalties;

(B)

in subsection (a), by inserting or, in addition to or in lieu of a civil penalty, is liable for the refund of a charge after civil penalty; and

(C)

in subsection (b), by inserting or, in addition to or in lieu of a civil penalty, the refund of a charge, after civil penalty; and

(2)

section 41109 is amended—

(A)

by striking subsections (a) and (b) and inserting the following:

(a)

General authority

Until a matter is referred to the Attorney General, the Federal Maritime Commission may—

(1)

after notice and opportunity for a hearing, in accordance with this part—

(A)

assess a civil penalty; or

(B)

in addition to, or in lieu of, assessing a civil penalty under subparagraph (A), order a refund of money (including additional amounts in accordance with section 41305(c)), subject to subsection (b)(2); and

(2)

compromise, modify, or remit, with or without conditions, a civil penalty or refund imposed under paragraph (1).

(b)

Determination of amount

(1)

Factors for consideration

In determining the amount of a civil penalty assessed or refund of money ordered pursuant to subsection (a), the Federal Maritime Commission shall take into consideration—

(A)

the nature, circumstances, extent, and gravity of the violation committed;

(B)

with respect to the violator—

(i)

the degree of culpability;

(ii)

any history of prior offenses;

(iii)

the ability to pay; and

(iv)

such other matters as justice may require; and

(C)

the amount of any refund of money ordered pursuant to subsection (a)(1)(B).

(2)

Commensurate reduction in civil penalty

(A)

In general

In any case in which the Federal Maritime Commission orders a refund of money pursuant to subsection (a)(1)(B) in addition to assessing a civil penalty pursuant to subsection (a)(1)(A), the amount of the civil penalty assessed shall be decreased by any additional amounts included in the refund of money in excess of the actual injury (as defined in section 41305(a)).

(B)

Treatment of refunds

A refund of money ordered pursuant to subsection (a)(1)(B) shall be—

(i)

considered to be compensation paid to the applicable claimant; and

(ii)

deducted from the total amount of damages awarded to that claimant in a civil action against the violator relating to the applicable violation.

;

(B)

in subsection (c), by striking may not be imposed and inserting or refund of money under subparagraph (A) or (B), respectively, of subsection (a)(1) may not be imposed;

(C)

in subsection (e), by inserting or order a refund of money after penalty;

(D)

in subsection (f), by inserting , or that is ordered to refund money, after assessed; and

(E)

in subsection (g), in the first sentence, by inserting or a refund required under this section after penalty.

9.

Data collection

(a)

In General

Chapter 411 of title 46, United States Code, is amended by adding at the end the following:

41110.

Data collection

The Federal Maritime Commission shall publish on its website a calendar quarterly report that describes the total import and export tonnage and the total loaded and empty 20-foot equivalent units per vessel (making port in the United States, including any territory or possession of the United States) operated by each ocean common carrier covered under this chapter. Ocean common carriers under this chapter shall provide to the Commission all necessary information, as determined by the Commission, for completion of this report.

.

(b)

Rule of construction

Nothing in this section, and the amendment made by this section, shall be construed to compel the public disclosure of any confidential or proprietary data, in accordance with section 552(b)(4) of title 5, United States Code.

(c)

Clerical amendment

The analysis for chapter 411 of title 46, United States Code, is amended by adding at the end the following:

41110. Data collection.

.

10.

Charge complaints

(a)

In general

Chapter 413 of title 46, United States Code, is amended by adding at the end the following:

41310.

Charge complaints

(a)

In general

A person may submit to the Federal Maritime Commission, and the Commission shall accept, information concerning complaints about charges assessed by a common carrier. The information submitted to the Commission may include the bill of lading numbers, invoices, or any other relevant information.

(b)

Investigation

Upon receipt of a submission under subsection (a), with respect to a charge assessed by a common carrier, the Commission shall promptly investigate the charge with regard to compliance with section 41104(a) and section 41102. The common carrier shall—

(1)

be provided an opportunity to submit additional information related to the charge in question; and

(2)

bear the burden of establishing the reasonableness of any demurrage or detention charges pursuant to section 545.5 of title 46, Code of Federal Regulations (or successor regulations).

(c)

Refund

Upon receipt of submissions under subsection (a), if the Commission determines that a charge does not comply with section 41104(a) or 41102, the Commission shall promptly order the refund of charges paid.

(d)

Penalties

In the event of a finding that a charge does not comply with section 41104(a) or 41102 after submission under subsection (a), a civil penalty under section 41107 shall be applied to the common carrier making such charge.

(e)

Considerations

If the common carrier assessing the charge is acting in the capacity of a non-vessel-operating common carrier, the Commission shall, while conducting an investigation under subsection (b), consider—

(1)

whether the non-vessel-operating common carrier is responsible for the noncompliant assessment of the charge, in whole or in part; and

(2)

whether another party is ultimately responsible in whole or in part and potentially subject to action under subsections (c) and (d).

.

(b)

Clerical amendment

The analysis for chapter 413 of title 46, United States Code, is amended by adding at the end the following:

41310. Charge complaints.

.

11.

Investigations

(a)

Amendments

Section 41302 of title 46, United States Code, is amended—

(1)

in subsection (a), in the first sentence, by striking or agreement and inserting agreement, fee, or charge; and

(2)

in subsection (b)—

(A)

in the subsection heading, by striking Agreement and inserting Agreement, fee, or charge; and

(B)

by inserting , fee, or charge after agreement.

(b)

Report

The Federal Maritime Commission shall publish on a publicly available website of the Commission a report containing the results of the investigation entitled Fact Finding No. 29, International Ocean Transportation Supply Chain Engagement.

12.

Award of additional amounts

Section 41305(c) of title 46, United States Code is amended by striking “41102(b)” and inserting “subsection (b) or (c) of section 41102”.

13.

Enforcement of reparation orders

Section 41309 of title 46, United States Code, is amended—

(1)

in subsection (a), by striking reparation, the person to whom the award was made and inserting a refund of money or reparation, the person to which the refund or reparation was awarded; and

(2)

in subsection (b), in the first sentence—

(A)

by striking made an award of reparation and inserting ordered a refund of money or any other award of reparation; and

(B)

by inserting (except for the Commission or any component of the Commission) after parties in the order.

14.

Annual report to Congress

Section 46106(b) of title 46, United States Code, is amended—

(1)

in paragraph (5), by striking and at the end;

(2)

in paragraph (6), by striking the period and inserting ; and; and

(3)

by adding at the end the following:

(7)

an identification of any otherwise concerning practices by ocean common carriers, particularly such carriers that are controlled carriers, that are—

(A)

State-owned or State-controlled enterprises; or

(B)

owned or controlled by, a subsidiary of, or otherwise related legally or financially (other than a minority relationship or investment) to a corporation based in a country—

(i)

identified as a nonmarket economy country (as defined in section 771(18) of the Tariff Act of 1930 (19 U.S.C. 1677(18))) as of the date of enactment of this paragraph;

(ii)

identified by the United States Trade Representative in the most recent report required by section 182 of the Trade Act of 1974 (19 U.S.C. 2242) as a priority foreign country under subsection (a)(2) of that section; or

(iii)

subject to monitoring by the United States Trade Representative under section 306 of the Trade Act of 1974 (19 U.S.C. 2416).

.

15.

Technical amendments

(a)

Section 41108(a) of title 46, United States Code, is amended by striking section 41104(1), (2), or (7) and inserting paragraph (1), (2), or (7) of section 41104(a).

(b)

Section 41109(c) of title 46, United States Code, as amended by section 8 of this Act, is further amended by striking section 41102(a) or 41104(1) or (2) of this title and inserting subsection (a) or (d) of section 41102 or paragraph (1) or (2) of section 41104(a).

(c)

Section 41305 of title 46, United States Code, as amended by section 12 of this Act, is further amended—

(1)

in subsection (c), by striking 41104(3) or (6), or 41105(1) or (3) of this title and inserting paragraph (3) or (6) of section 41104(a), or paragraph (1) or (3) of section 41105; and

(2)

in subsection (d), by striking section 41104(4)(A) or (B) of this title and inserting subparagraph (A) or (B) of section 41104(a)(4).

16.

Dwell time statistics

(a)

Definitions

In this section:

(1)

Director

The term Director means the Director of the Bureau of Transportation Statistics.

(2)

Marine container

The term marine container means an intermodal container with a length of—

(A)

not less than 20 feet; and

(B)

not greater than 45 feet.

(3)

Out of service percentage

The term out of service percentage means the proportion of the chassis fleet for any defined geographical area that is out of service at any one time.

(4)

Street dwell time

The term street dwell time, with respect to a piece of equipment, means the quantity of time during which the piece of equipment is in use outside of the terminal.

(b)

Authority to collect data

(1)

In general

Each port, marine terminal operator, and chassis owner or provider with a fleet of over 50 chassis that supply chassis for a fee shall submit to the Director such data as the Director determines to be necessary for the implementation of this section, subject to subchapter III of chapter 35 of title 44, United States Code.

(2)

Approval by OMB

Subject to the availability of appropriations, not later than 60 days after the date of enactment of this Act, the Director of the Office of Management and Budget shall approve an information collection for purposes of this section.

(c)

Publication

Subject to the availability of appropriations, not later than 240 days after the date of enactment of this Act, and not less frequently than monthly thereafter, the Director shall publish statistics relating to the dwell time of equipment used in intermodal transportation at the top 25 ports, including inland ports, by 20-foot equivalent unit, including—

(1)

total street dwell time, from all causes, of marine containers and marine container chassis; and

(2)

the average out of service percentage, which shall not be identifiable with any particular port, marine terminal operator, or chassis provider.

(d)

Factors

Subject to the availability of appropriations, to the maximum extent practicable, the Director shall publish the statistics described in subsection (c) on a local, regional, and national basis.

(e)

Sunset

The authority under this section shall expire December 31, 2026.

17.

Federal maritime commission activities

(a)

Public submissions to commission

The Federal Maritime Commission shall—

(1)

establish on the public website of the Commission a webpage that allows for the submission of comments, complaints, concerns, reports of noncompliance, requests for investigation, and requests for alternative dispute resolution; and

(2)

direct each submission under the link established under paragraph (1) to the appropriate component office of the Commission.

(b)

Authorization of Office of Consumer Affairs and Dispute Resolution Services

The Commission shall maintain an Office of Consumer Affairs and Dispute Resolution Services to provide nonadjudicative ombuds assistance, mediation, facilitation, and arbitration to resolve challenges and disputes involving cargo shipments, household good shipments, and cruises subject to the jurisdiction of the Commission.

(c)

Enhancing capacity for investigations

(1)

In general

Pursuant to section 41302 of title 46, United States Code, not later than 18 months after the date of enactment of this Act, the Chairperson of the Commission shall staff within the Bureau of Enforcement, the Bureau of Certification and Licensing, the Office of the Managing Director, the Office of Consumer Affairs and Dispute Resolution Services, and the Bureau of Trade Analysis not fewer than 7 total positions to assist in investigations and oversight, in addition to the positions within the Bureau of Enforcement, the Bureau of Certification and Licensing, the Office of the Managing Director, the Office of Consumer Affairs and Dispute Resolution Services, and the Bureau of Trade Analysis on that date of enactment.

(2)

Duties

The additional staff appointed under paragraph (1) shall provide support—

(A)

to Area Representatives of the Bureau of Enforcement;

(B)

to attorneys of the Bureau of Enforcement in enforcing the laws and regulations subject to the jurisdiction of the Commission;

(C)

for the alternative dispute resolution services of the Commission; or

(D)

for the review of agreements and activities subject to the authority of the Commission.

18.

Temporary emergency authority

(a)

Definitions

In this section:

(1)

Common carrier

The term common carrier has the meaning given the term in section 40102 of title 46, United States Code.

(2)

Motor carrier

The term motor carrier has the meaning given the term in section 13102 of title 49, United States Code.

(3)

Rail carrier

The term rail carrier has the meaning given the term in section 10102 of title 49, United States Code.

(4)

Shipper

The term shipper has the meaning given the term in section 40102 of title 46, United States Code.

(b)

Public input on information sharing

(1)

In general

Not later than 60 days after the date of enactment of this Act, the Federal Maritime Commission shall issue a request for information, seeking public comment regarding—

(A)

whether congestion of the carriage of goods has created an emergency situation of a magnitude such that there exists a substantial, adverse effect on the competitiveness and reliability of the international ocean transportation supply system;

(B)

whether an emergency order under this section would alleviate such an emergency situation; and

(C)

the appropriate scope of such an emergency order, if applicable.

(2)

Consultation

During the public comment period under paragraph (1), the Commission may consult, as the Commission determines to be appropriate, with—

(A)

other Federal departments and agencies; and

(B)

persons with expertise relating to maritime and freight operations.

(c)

Authority To require information sharing

On making a unanimous determination described in subsection (d), the Commission may issue an emergency order requiring any common carrier or marine terminal operator to share directly with relevant shippers, rail carriers, or motor carriers information relating to cargo throughput and availability, in order to ensure the efficient transportation, loading, and unloading of cargo to or from—

(1)

any inland destination or point of origin;

(2)

any vessel; or

(3)

any point on a wharf or terminal.

(d)

Description of determination

(1)

In general

A determination referred to in subsection (c) is a unanimous determination by the commissioners on the Commission that congestion of carriage of goods has created an emergency situation of a magnitude such that there exists a substantial, adverse effect on the competitiveness and reliability of the international ocean transportation supply system.

(2)

Factors for consideration

In issuing an emergency order pursuant to subsection (c), the Commission shall tailor the emergency order with respect to temporal and geographic scope, taking into consideration the likely burdens on common carriers and marine terminal operators and the likely benefits on congestion relating to the purposes described in section 40101 of title 46, United States Code.

(e)

Petitions for exception

(1)

In general

A common carrier or marine terminal operator subject to an emergency order issued pursuant to this section may submit to the Commission a petition for exception from 1 or more requirements of the emergency order, based on a showing of undue hardship or other condition rendering compliance with such a requirement impracticable.

(2)

Determination

The Commission shall make a determination regarding a petition for exception under paragraph (1) by—

(A)

majority vote; and

(B)

not later than 21 days after the date on which the petition is submitted.

(3)

Inapplicability pending review

The requirements of an emergency order that is the subject of a petition for exception under this subsection shall not apply to the petitioner during the period for which the petition is pending.

(f)

Limitations

(1)

Term

An emergency order issued pursuant to this section—

(A)

shall remain in effect for a period of not longer than 60 days; but

(B)

may be renewed by a unanimous determination of the Commission.

(2)

Sunset

The authority provided by this section shall terminate on the date that is 18 months after the date of enactment of this Act.

(3)

Investigative authority unaffected

Nothing in this section shall affect the investigative authorities of the Commission as described in subpart R of part 502 of title 46, Code of Federal Regulations.

19.

Best practices for chassis pools

(a)

In general

Not later than April 1, 2023, the Federal Maritime Commission shall enter into an agreement with the Transportation Research Board of the National Academies of Sciences, Engineering, and Medicine under which the Transportation Research Board shall carry out a study and develop best practices for on-terminal or near-terminal chassis pools that provide service to marine terminal operators, motor carriers, railroads, and other stakeholders that use the chassis pools, with the goal of optimizing supply chain efficiency and effectiveness.

(b)

Requirements

In developing best practices under subsection (a), the Transportation Research Board shall—

(1)

take into consideration—

(A)

practical obstacles to the implementation of chassis pools; and

(B)

potential solutions to those obstacles; and

(2)

address relevant communication practices, information sharing, and knowledge management.

(c)

Publication

The Commission shall publish the best practices developed under this section on a publicly available website by not later than April 1, 2024.

(d)

Funding

Subject to appropriations, the Commission may expend such sums as are necessary, but not to exceed $500,000, to carry out this section.

20.

Licensing testing

(a)

In general

Not later than 90 days after the date of enactment of this Act, the Administrator of the Federal Motor Carrier Safety Administration (referred to in this section as the Administrator) shall conduct a review of the discretionary waiver authority described in the document issued by the Administrator entitled Waiver for States Concerning Third Party CDL Skills Test Examiners In Response to the COVID–19 Emergency and dated August 31, 2021, for safety concerns.

(b)

Permanent waiver

If the Administrator finds no safety concerns after conducting a review under subsection (a), the Administrator shall—

(1)

notwithstanding any other provision of law, make the waiver permanent; and

(2)

not later than 90 days after completing the review under subsection (a), revise section 384.228 of title 49, Code of Federal Regulations, to provide that the discretionary waiver authority referred to in subsection (a) shall be permanent.

(c)

Report

If the Administrator declines to move forward with a rulemaking for revision under subsection (b), the Administrator shall explain the reasons for declining to move forward with the rulemaking in a report to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives.

21.

Planning

Section 6702(g) of title 49, United States Code, is amended—

(1)

by striking Of the amounts and inserting the following:

(1)

In general

Of the amounts

; and

(2)

by adding at the end the following:

(2)

Nonapplicability of certain limitations

Subparagraphs (A) and (B) of subsection (c)(2) shall not apply with respect to amounts made available for planning, preparation, or design under paragraph (1).

.

22.

Review of potential discrimination against transportation of qualified hazardous materials

(a)

In general

Not later than 90 days after the date of enactment of this Act, the Comptroller General of the United States shall initiate a review of whether there have been any systemic decisions by ocean common carriers to discriminate against maritime transport of qualified hazardous materials by unreasonably denying vessel space accommodations, equipment, or other instrumentalities needed to transport such materials. The Comptroller General shall take into account any applicable safety and pollution regulations.

(b)

Consultation

The Comptroller General of the United States may consult with the Commandant of the Coast Guard and the Chair of the Federal Maritime Commission in conducting the review under this section.

(c)

Definitions

In this section:

(1)

Hazardous materials

The term hazardous materials includes dangerous goods, as defined by the International Maritime Dangerous Goods Code.

(2)

Ocean common carrier

The term ocean common carrier has the meaning given such term in section 40102 of title 46, United States Code.

(3)

Qualified hazardous materials

The term qualified hazardous materials means hazardous materials for which the shipper has certified to the ocean common carrier that such materials have been or will be tendered in accordance with applicable safety laws, including regulations.

(4)

Shipper

The term shipper has the meaning given such term in section 40102 of title 46, United States Code.

23.

Transportation Worker Identification Credentials

(a)

Definition of direct assistance to a United States port

In this section:

(1)

In general

The term direct assistance to a United States port means the transportation of cargo directly to or from a United States port.

(2)

Exclusions

The term direct assistance to a United States port does not include—

(A)

the transportation of a mixed load of cargo that includes—

(i)

cargo that does not originate from a United States port; or

(ii)

a container or cargo that is not bound for a United States port;

(B)

any period during which a motor carrier or driver is operating in interstate commerce to transport cargo or provide services not in support of transportation to or from a United States port; or

(C)

the period after a motor carrier dispatches the applicable driver or commercial motor vehicle of the motor carrier to another location to begin operation in interstate commerce in a manner that is not in support of transportation to or from a United States port.

(b)

Transportation Worker Identification Credentials

The Administrator of the Transportation Security Administration and the Commandant of the Coast Guard shall jointly prioritize and expedite the consideration of applications for a Transportation Worker Identification Credential with respect to applicants that reasonably demonstrate that the purpose of the Transportation Worker Identification Credential is for providing, within the interior of the United States, direct assistance to a United States port.

24.

Use of United States inland ports for storage and transfer of cargo containers

(a)

Meeting

Not later than 90 days after the date of enactment of this Act, the Assistant Secretary for Transportation Policy, in consultation with the Administrator of the Maritime Administration and the Chairperson of the Federal Maritime Commission, shall convene a meeting of representatives of entities described in subsection (b) to discuss the feasibility of, and strategies for, identifying Federal and non-Federal land, including inland ports, for the purposes of storage and transfer of cargo containers due to port congestion.

(b)

Description of entities

The entities referred to in subsection (a) are—

(1)

representatives of United States major gateway ports, inland ports, and export terminals;

(2)

ocean carriers;

(3)

railroads;

(4)

trucking companies;

(5)

port workforce, including organized labor; and

(6)

such other stakeholders as the Secretary of Transportation, in consultation with the Chairperson of the Federal Maritime Commission, determines to be appropriate.

(c)

Report to Congress

As soon as practicable after the date of the meeting convened under subsection (a), the Assistant Secretary for Transportation Policy, in consultation with the Administrator of the Maritime Administration and the Chairperson of the Federal Maritime Commission, shall submit to Congress a report describing—

(1)

the results of the meeting;

(2)

the feasibility of identifying land or property under the jurisdiction of United States, or ports in the United States, for storage and transfer of cargo containers; and

(3)

recommendations relating to the meeting, if any.

(d)

Savings provision

No authorization contained in this section may be acted on in a manner that jeopardizes or negatively impacts the national security or defense readiness of the United States.

25.

Report on adoption of technology at United States ports

Not later than 1 year after the date of enactment of this Act, the Comptroller General of the United States shall submit to Congress a report describing the adoption of technology at United States ports, as compared to that adoption at foreign ports, including—

(1)

the technological capabilities of United States ports, as compared to foreign ports;

(2)

an assessment of whether the adoption of technology at United States ports could lower the costs of cargo handling;

(3)

an assessment of regulatory and other barriers to the adoption of technology at United States ports; and

(4)

an assessment of technology and the workforce.

26.

Authorization of appropriations

Section 46108 of title 46, United States Code, is amended by striking $29,086,888 for fiscal year 2020 and $29,639,538 for fiscal year 2021 and inserting $32,869,000 for fiscal year 2022, $38,260,000 for fiscal year 2023, $43,720,000 for fiscal year 2024, and $49,200,000 for fiscal year 2025.

March 24, 2022

Reported with an amendment