H.R. 4996 — what changed

changed Section 40101 of title 46, United States Code, is amended—amended by striking paragraphs (2) through (4) and inserting the following:

added “(2) ensure an efficient and competitive transportation system for the common carriage of goods by water in the foreign commerce of the United States that is, as far as possible, in harmony with fair and equitable international shipping practices;

added “(3) encourage the development of a competitive and efficient liner fleet of vessels of the United States capable of meeting national security and commerce needs of the United States;

added “(4) support the growth and development of United States exports through a competitive and efficient system for the common carriage of goods by water in the foreign commerce of the United States and by placing a greater reliance on the marketplace; and

added “(5) promote reciprocal trade in the common carriage of goods by water in the foreign commerce of the United States.”

removed “(2) ensure an efficient, competitive, and economical transportation system in the ocean commerce of the United States;”

removed “(4) support the growth and development of United States exports; and

removed “(5) promote reciprocal trade in the foreign commerce of the United States.”

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

changed “(9) any other essential terms or minimum contract requirements that the Federal Maritime Commission determines necessary or appropriate”appropriate.”

changed “(g) Service contract requirement—A requirement—With respect to service contracts entered into under this section, a common carrier may not fail to shall establish, observe, and enforce just and reasonable regulations and practices relating to service contracts.”essential terms and minimum contract requirements the Commission determines are necessary or appropriate under subsection (c)(9).”

“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.

changed “(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, 40502, and issue licenses for registered national shipping exchanges.”exchanges.

added “(e) Definition—In this subsection, the term shipping exchange means a platform, digital, over-the-counter or otherwise, which connects shippers with common carriers (both vessel-operating and non-vessel-operating) for the purpose of entering into underlying agreements or contracts for the transport of cargo, by vessel or other modes of transportation.”

added “41110. Data collection

added “(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.

added “(b) Prohibition on duplication—Data required to be reported under subsection (a) may not duplicate information—

added “(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

added “(2) submitted pursuant to section 481 of the Tariff Act of 1930 (19 U.S.C. 1481) to U.S. Customs and Border Protection by merchandise importers.”

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

removed “(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.”

removed Section 41103 of title 46, United States Code, is amended by adding at the end the following:

removed “(d) Public disclosures—The Federal Maritime Commission shall publish, and annually update, on the website of the Commission—

removed “(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

removed “(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.”

removed “(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;”

removed “(14) fail to furnish or cause a contractor to fail to furnish the facilities and instrumentalities needed to perform the transportation services, including containers;

removed “(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;

removed “(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

removed “(17) invoice any party for demurrage or detention charges, unless accompanied by an accurate certification that such charges comply with—

removed “(A) all provisions of section 545 of title 46, Code of Federal Regulations;

removed “(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

removed “(C) any subsequent rules and regulations concerning demurrage or detention that may be issued by the Commission.”

added “(7) an identification of any anticompetitive or nonreciprocal trade practices by ocean common carriers;

added “(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 41110; and

added “(9) an identification of any otherwise concerning practices by ocean common carriers, particularly such carriers that are—

added “(A) State-owned or State-controlled enterprises; or

added “(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—

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

added “(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

added “(iii) subject to monitoring by the Trade Representative under section 306 of the Trade Act of 1974 (19 U.S.C. 2416).”

removed “(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.

removed “(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).

removed “(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.

removed “(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—

removed “(1) act in a manner consistent with—

removed “(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

removed “(B) any subsequent rules or regulations concerning demurrage or detention which may be issued by the Commission; and

removed “(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

removed “(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.

removed “(h) Minimum service standards—A common carrier shall be obligated to adhere to minimum service standards that meet the public interest.”

added “(d) Public disclosures—The Federal Maritime Commission shall publish, and annually update, on the website of the Commission—

added “(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

added “(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.”

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

added “(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, has filed a complaint, or for any other reason.

added “(e) Certification—A common carrier or marine terminal operator shall not charge any other person demurrage or detention charges under a tariff, marine terminal schedule, service contract, or any other contractual obligation unless accompanied by an accurate certification that such charges comply with all rules and regulations concerning demurrage or detention issued by the Commission. The certification requirement only applies to the entity that establishes the charge, and a common carrier or marine terminal operator that collects a charge on behalf of another common carrier or marine terminal operator is not responsible for providing the certification, except that an invoice from a common carrier or marine terminal operator collecting a charge on behalf of another must include a certification from the party that established the charge.”

added “(3) engage in practices that unreasonably reduce shipper accessibility to equipment necessary for the loading or unloading of cargo;”

added “(14) fail to furnish or cause a contractor to fail to furnish containers or other facilities and instrumentalities needed to perform transportation services, including allocation of vessel space accommodations, in consideration of reasonably foreseeable import and export demands; or

added “(15) unreasonably decline export cargo bookings if such cargo can be loaded safely and timely, as determined by the Commandant of the Coast Guard, and carried on a vessel scheduled for the immediate destination of such cargo.”

removed “41110. Data collection

removed “(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.

removed “(b) Prohibition on duplication—Data required to be reported under subsection (a) may not duplicate information—

removed “(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

removed “(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.”

added “(d) Certification—Failure of a common carrier to include a certification under section 41102(e) alongside any demurrage or detention charge shall eliminate any obligation of the charged party to pay the applicable charge.

added “(e) 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—

added “(1) act in a manner consistent with any rules or regulations concerning demurrage or detention issued by the Commission;

added “(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

added “(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.

added “(f) Penalties for false or inaccurate certified demurrage or detention charges—In the event of a finding that the certification under section 41102(e) was inaccurate, or false after submission under section 41301, penalties under section 41107 shall be applied if the Commission determines, in a separate enforcement proceeding, such certification was inaccurate or false.”

removed Section 41301 to title 46, United States Code, is amended—

removed “(d) Complaints regarding certified demurrage or detention charges

removed “(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.

removed “(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.

removed “(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.

removed “(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.”

removed Section 41302 of title 46, United States Code, is amended by striking “or agreement” and inserting “agreement, fee, or charge”.

changed Section 41305(c) 41302 of title 46, United States Code, is amended—amended by striking “or agreement” and inserting “, agreement, fee, or charge”.

changed Section 41307(b)(3) 41307(b) to title 46, United States Code, is amended by striking “not”.amended—

added “(5) Third party intervention—The court may allow a third party to intervene in a civil action brought under this section.”

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

added 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 “$32,603,492 for fiscal year 2022 and $35,863,842 for fiscal year 2023”.

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

removed “(7) an identification of any anticompetitive or nonreciprocal trade practices by ocean common carriers;

removed “(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

removed “(9) an identification of any otherwise concerning practices by ocean common carriers, particularly such carriers that are—

removed “(A) State-owned or State-controlled enterprises; or

removed “(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—

removed “(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;

removed “(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

removed “(iii) subject to monitoring by the Trade Representative under section 306 of the Trade Act of 1974 (19 U.S.C. 2416).”