Ocean Shipping Reform Act of 2021

Ocean Shipping Reform Act of 2021

This bill revises provisions related to ocean shipping policies and is designed to support the growth and development of U.S. exports and promote reciprocal trade in the common carriage of goods by water in the foreign commerce of the United States.

Among other provisions, the bill

• sets forth requirements for operating a shipping exchange involving ocean transportation in the foreign commerce of the United States;
• requires ocean common carriers to report to the Federal Maritime Commission (FMC) each calendar quarter on total import and export tonnage and the total loaded and empty 20-foot equivalent units per vessel that makes port in the United States;
• requires the FMC to publish and annually update all its findings of false certifications by ocean common carriers or marine terminal operators and all penalties assessed against such carriers or operators;
• revises annual reporting requirements for the FMC on foreign laws and practices to include practices by ocean common carriers;
• prohibits ocean common carriers and marine terminal operators from retaliating or discriminating against shippers because such shippers have patronized another carrier, or filed a complaint;
• directs the FMC to establish rules prohibiting ocean common carriers and marine terminal operators from adopting and applying unjust and unreasonable demurrage and detention fees;
• authorizes the FMC to initiate investigations of an ocean common carrier's fees or charges and apply enforcement measures, as appropriate;
• directs the Department of Transportation to seek to enter into an agreement with the National Academy of Sciences to study the U.S. supply chain industry, including data constraints that impede the flow of maritime cargo and add to supply chain inefficiencies; and
• provides authority for the FMC to issue an emergency order requiring ocean common carriers or marine terminal operators to share directly with relevant shippers, rail carriers, or motor carriers information relating to cargo throughput and availability.

[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4996 Introduced in House (IH)]

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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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