[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 3580 Introduced in Senate (IS)]

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117th CONGRESS
  2d Session
                                S. 3580

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 SENATE OF THE UNITED STATES

                            February 3, 2022

  Ms. Klobuchar (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, and Ms. Ernst) introduced 
the following bill; which was read twice and referred to the Committee 
                on Commerce, Science, and Transportation

_______________________________________________________________________

                                 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 2022''.

SEC. 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.''.

SEC. 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.''.

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 (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.''.

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.--
            ``(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).''.

SEC. 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.''.

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 
                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.

SEC. 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.''.

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. CHARGE COMPLAINTS.

    (a) In General.--Chapter 413 of title 46, United States Code, is 
amended by adding at the end the following:
``Sec. 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.''.

SEC. 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''.

SEC. 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)''.

SEC. 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.''.

SEC. 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).''.

SEC. 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)''.
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