[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4996 Introduced in House (IH)]
<DOC>
117th CONGRESS
1st Session
H. R. 4996
To amend title 46, United States Code, with respect to prohibited acts
by ocean common carriers or marine terminal operators, and for other
purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
August 10, 2021
Mr. Garamendi (for himself and Mr. Johnson of South Dakota) introduced
the following bill; which was referred to the Committee on
Transportation and Infrastructure
_______________________________________________________________________
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.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Ocean Shipping Reform Act of 2021''.
SEC. 2. PURPOSES.
Section 40101 of title 46, United States Code, is amended--
(1) in paragraph (1) by striking ``with'' and all that
follows through the semicolon;
(2) 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;'';
(3) in paragraph (3) by inserting ``and commerce'' before
``needs''; and
(4) by striking paragraph (4) and inserting the following:
``(4) support the growth and development of United States
exports; and
``(5) promote reciprocal trade in the foreign commerce of
the United States.''.
SEC. 3. SERVICE CONTRACTS.
Section 40502 of title 46, United States Code, is amended--
(1) in subsection (c)--
(A) in paragraph (7) by striking ``; and'' and
inserting a semicolon;
(B) in paragraph (8) by striking the period and
inserting ``; and''; and
(C) by adding at the end the following:
``(9) any other essential terms or minimum contract
requirements that the Federal Maritime Commission determines
necessary or appropriate''; and
(2) by adding at the end the following:
``(g) Service Contract Requirement.--A common carrier may not fail
to establish, observe, and enforce just and reasonable regulations and
practices relating to service contracts.''.
SEC. 4. SHIPPING EXCHANGE REGISTRY.
(a) In General.--Chapter 405 of title 46, United States Code, is
amended by adding at the end the following:
``Sec. 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 in the public interest.
``(c) Exemption.--The Commission may exempt, conditionally or
unconditionally, a shipping exchange from registration and licensing
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 the home country of the
shipping exchange.
``(d) Regulations.--In issuing regulations pursuant to subsection
(a), the Commission shall set standards necessary to carry out subtitle
IV of title 46, United States Code, for registered national shipping
exchanges, including the minimum requirements for service contracts
established under section 40502 of such title, and issue licenses for
registered national shipping exchanges.''.
(b) Applicability.--The registration requirement under section
40504 of title 46, United States Code (as added by this section), shall
take effect on the date on which the Federal Maritime Commission issues
regulations required under subsection (b) of 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.''.
SEC. 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.--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 shipper's agent, or a motor carrier
by refusing, or threatening to refuse, cargo space accommodations when
available, or resort to other unfair or unjustly discriminatory methods
because the shipper has patronized another carrier, or has filed a
complaint, or for any other reason.''.
SEC. 6. PUBLIC DISCLOSURE.
Section 41103 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)(18) 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.''.
SEC. 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
inserting ``, or ocean common carrier where
specified,'' after ``A common carrier'';
(B) by striking paragraph (3) and inserting the
following:
``(3) establish rules and practices for the allocation and
interchange of necessary equipment that unreasonably reduce
accessibility to such equipment or efficiencies in performance
of the transportation services;'';
(C) in paragraph (12) by striking ``; or'' and
inserting a semicolon;
(D) in paragraph (13) by striking the period and
inserting a semicolon; and
(E) by adding at the end the following:
``(14) fail to furnish or cause a contractor to fail to
furnish the facilities and instrumentalities needed to perform
the transportation services, including containers;
``(15) fail to establish, observe, and enforce just and
reasonable regulations and practices relating to the allocation
of vessel space accommodations in consideration of foreseeable
import and export demands;
``(16) unreasonably decline export cargo bookings if such
cargo can be loaded safely and timely and carried on a vessel
scheduled for such cargo's immediate destination; or
``(17) invoice any party for demurrage or detention
charges, unless accompanied by an accurate certification that
such charges comply with--
``(A) all provisions of section 545 of title 46,
Code of Federal Regulations;
``(B) the findings of the final rule published on
May 18, 2020, titled `Interpretive Rule on Demurrage
and Detention Under the Shipping Act' (85 Fed. Reg.
29638); and
``(C) any subsequent rules and regulations
concerning demurrage or detention that may be issued by
the Commission.''; and
(2) by adding at the end the following:
``(d) Application of Certain Provisions.--The prohibition under
subsection (a)(17) shall apply to marine terminal operators, except
that such prohibition shall not apply to terminal detention or
demurrage charges by marine terminal operators if such charges are
based on public port tariffs set under State law.
``(e) Violation of Prohibition.--Any common carrier or marine
terminal operator, if applicable, that violates the prohibitions under
paragraph (14), (15), (16), or (17) of subsection (a) shall be subject
to a penalty under sections 41108(a).
``(f) Certification.--Failure to include a certification under
subsection (a)(17) alongside any demurrage or detention charge shall
eliminate any obligation of the charged party to pay the applicable
charge.
``(g) Demurrage and Detention Practices and Charges.--
Notwithstanding any other provision of law and not later than 30 days
of the date of enactment of this subsection, a common carrier or marine
terminal operator, shall--
``(1) act in a manner consistent with--
``(A) the findings of the final rule published on
May 18, 2020, titled `Interpretive Rule on Demurrage
and Detention Under the Shipping Act' (85 Fed. Reg.
29638); and
``(B) any subsequent rules or regulations
concerning demurrage or detention which may be issued
by the Commission; and
``(2) maintain all records supporting the assessment of any
demurrage or detention charges for a period of 5 years and
provide such records to the invoiced party or to the Commission
on request; and
``(3) 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 charges as unjust and
unreasonable.
``(h) Minimum Service Standards.--A common carrier shall be
obligated to adhere to minimum service standards that meet the public
interest.''.
(b) Rulemaking on Prohibition.--
(1) In general.--Not later than 90 days after the date of
enactment of this Act, the Federal Maritime Commission shall
initiate a rulemaking proceeding to establish rules prohibiting
common carriers and marine terminal operators from adopting and
applying unjust and unreasonable demurrage and detention rules
and practices.
(2) Contents.--The rulemaking under paragraph (1) shall
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 the following:
(A) Establishing clear and uniform definitions for
demurrage, detention, cargo availability for retrieval
and associated free time, and other terminology used in
the rule. The definition for cargo availability for
retrieval shall account for government inspections.
(B) Establishing that demurrage and detention rules
are not independent revenue sources but incentivize
efficiencies in the ocean transportation network,
including the retrieval of cargo and return of
equipment.
(C) Prohibiting the consumption of free time or
collection of demurrage and detention charges when
obstacles to the cargo retrieval or return of equipment
are within the scope of responsibility of the carrier
or their agent and beyond the control of the invoiced
or contracting party.
(D) Prohibiting the commencement or continuation of
free time unless cargo is available for retrieval and
timely notice of cargo availability has been provided.
(E) Prohibiting the consumption of free time or
collection of demurrage charges when marine terminal
appointments are not available during the free time
period.
(F) Prohibiting the consumption of free time or
collection of detention charges on containers when the
marine terminal required for return is not open or
available.
(G) Requiring common carriers to provide timely
notice of--
(i) cargo availability after vessel
discharge;
(ii) container return locations; and
(iii) advance notice for container early
return dates.
(H) Establishing minimum billing requirements,
including timeliness and supporting information that
shall be included in or with invoices for demurrage and
detention charges that will allow the invoiced party to
validate the charges.
(I) Requiring common carriers and marine terminal
operators to establish reasonable dispute resolution
policies and practices.
(J) Establishing the responsibilities of shippers,
receivers, and draymen with respect to cargo retrieval
and equipment return.
(K) Examining the invoicing of parties other than
the shipper for any demurrage, detention, or other
similar per container charges, including determining
whether such parties should be billed at all.
(c) Rulemaking on Minimum Service Standards.--Not later than 90
days after the date of enactment of this Act, the Commission shall
initiate a rulemaking proceeding to incorporate subsections (d) through
(h) of 41104 of title 46, United States Code, and subsection (c) of
this section and shall include the following:
(1) The obligation to adopt reasonable rules and practices
related to or connected with the furnishing and allocation of
adequate and suitable equipment, vessel space accommodations,
and other instrumentalities necessary for the receiving,
loading, carriage, unloading and delivery of cargo.
(2) The duty to perform the contract of carriage with
reasonable dispatch.
(3) The requirement to carry United States export cargo if
such cargo can be loaded safely and timely and carried on a
vessel scheduled for such cargo's immediate destination.
(4) The requirement of ocean common carriers to establish
contingency service plans to address and mitigate service
disruptions and inefficiencies during periods of port
congestion and other market disruptions.
(d) Rulemaking on Unreasonably Decline.--
(1) In general.--Not later than 90 days after the date of
enactment of this Act, the Commission shall initiate a
rulemaking proceeding to define ``unreasonably decline'' for
the purposes of subsection (a)(16) of section 41104 of title
46, United States Code.
(2) Contents.--The rulemaking under paragraph (1) shall
address the unreasonableness of ocean common carriers
prioritizing the shipment of empty containers while excluding,
limiting, or otherwise reducing the shipment of full, loaded
containers when such containers are readily available to be
shipped and the appurtenant vessel has the weight and space
capacity available to carry such containers if loaded in a safe
and timely manner.
SEC. 8. ASSESSMENT OF PENALTIES.
(a) In General.--Section 41109 of title 46, United States Code, is
amended--
(1) in subsection (a)--
(A) by inserting ``or, in addition to or in lieu of
a civil penalty, order the refund of money'' after
``this part.''; and
(B) by inserting ``or refund of money'' after
``conditions, a civil penalty'';
(2) in subsection (c) by inserting ``or refund of money''
after ``civil penalty'';
(3) in subsection (e) by inserting ``or order a refund of
money'' after ``civil penalty''; and
(4) in subsection (f) by inserting ``or who is ordered to
refund money'' after ``civil penalty is assessed''.
SEC. 9. DATA COLLECTION.
(a) In General.--Chapter 411 of title 46, United States Code, is
amended by adding at the end the following:
``Sec. 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.''.
SEC. 10. COMPLAINTS.
Section 41301 to title 46, United States Code, is amended--
(1) in subsection (a)--
(A) by striking ``except section 41307(b)(1)'' and
insert ``including section 41307(b)(1)''; and
(B) by inserting ``A person may file with the
Federal Maritime Commission a sworn complaint alleging
a violation of this part.'' after ``the violation.'';
and
(2) by adding at the end the following:
``(d) Complaints Regarding Certified Demurrage or Detention
Charges.--
``(1) In general.--A person may submit to the Federal
Maritime Commission, and the Commission shall accept,
information concerning demurrage or detention charges which
were, or were required to be, certified pursuant to section
41104(a)(17). The information submitted to the Commission may
include the bill of lading numbers, applicable carrier
certifications, the minimum billing requirements for demurrage
and detention invoices established under section
41104(h)(2)(H), or any other relevant information.
``(2) Refund.--Upon receipt of submissions under paragraph
(1), if the Commission determines that the certification of the
carrier under section 41104(a)(17) did not accompany the
detention or demurrage charge or that such certification was
inaccurate or false, the Commission shall promptly order the
refund of any demurrage and detention charges paid.
``(3) Investigation.--Upon receipt of submissions under
paragraph (1), including the certification under section
41104(a)(17), the Commission shall promptly investigate the
accuracy of such certification with regard to compliance with
the provisions of part 545 of title 46, Code of Federal
Regulations.
``(4) Penalties.--In the event of a finding that the
certification under section 41104(a)(17) was inaccurate or
false after submission under paragraph (1), penalties under
section 41107 shall be applied if the Commission determines
such certification was inaccurate or false due to lack of due
care.''.
SEC. 11. INVESTIGATIONS.
Section 41302 of title 46, United States Code, is amended by
striking ``or agreement'' and inserting ``agreement, fee, or charge''.
SEC. 12. AWARD OF ADDITIONAL AMOUNTS.
Section 41305(c) of title 46, United States Code, is amended--
(1) by inserting ``or (c)'' after ``41102(b)''; and
(2) by inserting ``or if the Commission determined that a
violation of section 41104(a)(17) of this title was made
willfully and knowingly,'' after ``of this title''.
SEC. 13. INJUNCTIVE RELIEF.
Section 41307(b)(3) to title 46, United States Code, is amended by
striking ``not''.
SEC. 14. ENFORCEMENT OF REPARATION ORDERS.
Section 41309 of title 46, United States Code, is amended--
(1) in subsection (a)--
(A) by inserting ``or refund of money'' after
``payment of reparation''; and
(B) by inserting ``or to whom the refund of money
was ordered'' after ``award was made''; and
(2) in subsection (b) by inserting ``or refund of money''
after ``award of reparation''.
SEC. 15. NATIONAL SHIPPER ADVISORY COMMITTEE.
(a) National Shipper Advisory Committee.--Section 42502(c)(3) of
title 46, United States Code, is amended by inserting ``, including
customs brokers or freight forwarders'' after ``ocean common carriers''
each place such term occurs.
(b) Analysis.--The analysis for chapter 425 of title 46, United
States Code, is amended by inserting before the item relating to
section 42501 the following:
``Sec.''.
SEC. 16. 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)--
(A) by striking ``under this part'' and inserting
``under this chapter''; and
(B) by striking the period and inserting a
semicolon; and
(3) by adding at the end the following:
``(7) an identification of any anticompetitive or
nonreciprocal trade practices by ocean common carriers;
``(8) an analysis of any trade imbalance resulting from the
business practices of ocean common carriers, including an
analysis of the data collected under section 41111; and
``(9) an identification of any otherwise concerning
practices by ocean common carriers, particularly such carriers
that are--
``(A) State-owned or State-controlled enterprises;
or
``(B) owned or controlled by, is a subsidiary of,
or is 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 Trade
Representative under section 306 of the Trade
Act of 1974 (19 U.S.C. 2416).''.
SEC. 17. TECHNICAL AMENDMENTS.
(a) Federal Maritime Commission.--The analysis for chapter 461 of
title 46, United States Code, is amended by striking the first item
relating to chapter 461.
(b) Additional Penalties.--Section 41108(a) of title 46, United
States Code, is amended by striking ``section 41104(1), (2), or (7)''
and inserting ``paragraphs (1), (2), or (7) of section 41104(a)''.
(c) 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)''.
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