Section 1 Short title
This Act may be cited as the “Facilitating Relief for Efficient Intermodal Gateways to Handle Transportation Act” or the “FREIGHT Act”.
Facilitating Relief for Efficient Intermodal Gateways to Handle Transportation Act
A BILL
To improve the efficient movement of freight at ports in the United States, and for other purposes.
Sec. 7 Best practices for chassis pools
In general— Not later than April 1, 2023, the 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.
Requirements— In developing best practices under subsection (a), the Transportation Research Board shall—
take into consideration—
practical obstacles to the implementation of chassis pools; and
potential solutions to those obstacles; and
address relevant communication practices, information sharing, and knowledge management.
Publication— The Commission shall publish the best practices developed under this section on a publicly available website by not later than April 1, 2024.
Authorization of appropriations— There is authorized to be appropriated to the Commission to carry out this section $500,000.
Sec. 8 Enhancing anti-retaliation protections
General prohibitions— 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.”
Conforming amendments—
Section 41104 of title 46, United States Code, is amended—
in subsection (a)—
by striking paragraph (3); and
by redesignating paragraphs (4) through (13) as paragraphs (3) through (12), respectively;
in subsection (b), by striking “subsection (a)(13)” and inserting “subsection (a)(12)”; and
in subsection (c), by striking “subsection (a)(13)” and inserting “subsection (a)(12)”.
Section 41108(a) of title 46, United States Code, is amended by striking “section 41104(1), (2), or (7) of this title” and inserting “paragraph (1), (2), or (6) of section 41104(a)”.
Section 41109(c) of title 46, United States Code, is 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)”.
Section 41305 of title 46, United States Code, is amended—
in subsection (c), by striking “41104(3) or (6), or 41105(1) or (3) of this title” and inserting “section 41104(a)(5), or paragraph (1) or (3) of section 41105”; and
in subsection (d), by striking “section 41104(4)(A) or (B) of this title” and inserting “subparagraph (A) or (B) of section 41104(a)(3)”.
Enhancing reparations for violations— Section 41305(c) of title 46, United States Code (as amended by subsection (b)(4)(A)), is amended by striking “41102(b)” and inserting “subsection (b) or (c) of section 41102”.
Sec. 9 Relief available in enforcement proceedings
Assessment of penalties— Section 41109 of title 46, United States Code, is amended—
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.”
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”;
in subsection (e), by inserting “or order a refund of money” after “penalty”;
in subsection (f), by inserting “, or that is ordered to refund money,” after “assessed”; and
in subsection (g), in the first sentence, by inserting “or a refund required under this section” after “penalty”.
Enforcement of reparation orders— Section 41309 of title 46, United States Code, is amended—
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
in subsection (b), in the first sentence—
by striking “made an award of reparation” and inserting “ordered a refund of money or any other award of reparation”; and
by inserting “(except for the Commission or any component of the Commission)” after “parties in the order”.
Sec. 10 Port infrastructure performance
Port and intermodal improvement program—
Definition of qualifying port authority— In this subsection, the term qualifying port authority means a container port that is included in the top 10 container ports with respect to the handling of 20-foot equivalent units of containerized cargo, as determined in accordance with the most recent documentation published by the Secretary.
Data-sharing agreement—
In general— As a condition of receipt of a grant under title 23 or 49, United States Code, a qualifying port authority shall enter into a data-sharing agreement under which the qualifying port authority shall submit to the Secretary the data described in paragraph (3), with a particular emphasis on cargo throughput data, subject to subparagraphs (B) and (C).
Consultation— To the maximum extent practicable, to avoid duplicative reporting of data, the Secretary shall coordinate with the Commissioner of U.S. Customs and Border Protection to receive data previously collected by U.S. Customs and Border Protection for purposes of this subsection.
Discretion of Secretary— If the Secretary determines that any data referred to in subparagraph (A) are not feasible to collect, the Secretary may exclude a qualifying port authority from the requirement to submit those data.
Inclusions— The data referred to in paragraph (2)(A) include data collected by a qualifying port authority relating to—
the total capacity of inbound and outbound cargo;
the total volume of inbound and outbound cargo;
the average number of lifts per hour of containers by crane;
the average vessel turn time, expressed by vessel type;
the average cargo, container, and intermodal equipment dwell time;
port storage capacity and utilization;
modal throughput statistics, including—
rail statistics; and
statistics relating to the time required for any single individual or truck trailer to return to the same port or port terminal (commonly known as “truck turn time”);
the types of cargo moved;
the presence and location of any intermodal connectors;
the physical size of each terminal within applicable port boundaries;
maximum authorized channel depth and maximum actual and current channel depth;
the schedule of vessel arrivals, for use in determining vessel on-time performance;
berth utilization; and
any additional metrics, as determined by the Secretary.
Origin requirement— The data required to be submitted under this subsection shall originate from a port authority of a qualifying port authority grant recipient.
Public access to data— The Secretary shall ensure that the data compiled under this subsection are readily accessible to the public, in accordance with applicable security constraints and confidentiality requirements.
Authorization of appropriations for voluntary data-sharing pilot program— There is authorized to be appropriated $150,000 for fiscal year 2023 to the Administrator of the Maritime Administration to carry out, in consultation with the Director of the Bureau of Transportation Statistics, a voluntary data-sharing pilot program that involves not less than a majority of the types of data described in paragraph (3).
Administration of policies and programs by Office of Multimodal Freight Infrastructure and Policy— Section 118(d)(3) of title 49, United States Code (as added by section 21101(a) of the Infrastructure Investment and Jobs Act), is amended—
in subparagraph (A), by striking “and” at the end;
by redesignating subparagraph (B) as subparagraph (C); and
by inserting after subparagraph (A) the following:
“(B) administer the port and intermodal improvement program under section 50302(c) of title 46; and”
Sec. 11 Temporary emergency authority
Definitions— In this section:
Common carrier— The term common carrier has the meaning given the term in section 40102 of title 46, United States Code.
Motor carrier— The term motor carrier has the meaning given the term in section 13102 of title 49, United States Code.
Rail carrier— The term rail carrier has the meaning given the term in section 10102 of title 49, United States Code.
Shipper— The term shipper has the meaning given the term in section 40102 of title 46, United States Code.
Public input on information sharing—
In general— Not later than 30 days after the date of enactment of this Act, the Commission shall issue a request for information, seeking public comment regarding—
whether congestion of the common 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;
whether an emergency order under this section would alleviate such an emergency situation; and
the appropriate scope of such an emergency order, if applicable.
Consultation— During the public comment period under paragraph (1), the Commission may consult, as the Commission determines to be appropriate, with—
other Federal departments and agencies; and
persons with expertise relating to maritime and freight operations.
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—
any inland destination or point of origin;
any vessel; or
any point on a wharf or terminal.
Description of determination—
In general— A determination referred to in subsection (c) is a unanimous determination by the commissioners on the Commission that congestion of common 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.
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 ocean 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.
Petitions for exception—
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.
Determination— The Commission shall make a determination regarding a petition for exception under paragraph (1) by—
majority vote; and
not later than 21 days after the date on which the petition is submitted.
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.
Limitations—
Term— An emergency order issued pursuant to this section—
shall remain in effect for a period of not longer than 60 days; but
may be renewed by a unanimous determination of the Commission.
Sunset— The authority provided by this section shall terminate on the date that is 1 year after the date of enactment of this Act.
Sec. 12 Additional transportation representation
Section 1325(a) of title 49, United States Code, is amended—
in the matter preceding paragraph (1), by striking “19 members, of which 15 members” and inserting “24 members, of whom 18”; and
in paragraph (3)—
by redesignating subparagraphs (A) and (B) as clauses (i) and (ii), respectively, and indenting appropriately;
in the matter preceding clause (i) (as so redesignated), by striking “(3) The remaining 6 members of the Council shall” and inserting the following:
“(3)
“(A) The remaining 9 members of the Council shall be appointed to”
in subparagraph (A) (as so designated)—
in clause (i) (as so redesignated), by striking “and” at the end;
in clause (ii) (as so redesignated), by striking “organizations (as determined by the Chairman).” and inserting “organizations, as determined by the Chairman; and”; and
by adding at the end the following:
“(iii) at least 1 shall be a representative of marine terminal operators or ports.”
by adding at the end the following:
“(B) Nothing in this paragraph limits any provision relating to the appointment of the members under paragraph (2).”
Sec. 13 Permanent waiver
In general— Notwithstanding any other provision of law, the Administrator of the Federal Motor Carrier Safety Administration shall make permanent the waiver 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.
Rulemaking— Not later than 90 days after the date of enactment of this Act, the Administrator of the Federal Motor Carrier Safety Administration shall revise section 384.228 of title 49, Code of Federal Regulations, to provide that the waiver referred to in subsection (a) shall be permanent.
Sec. 2 Dwell time statistics
Definitions— In this section:
Director— The term Director means the Director of the Bureau of Transportation Statistics.
Marine container— The term marine container means an intermodal container with a length of—
not less than 20 feet; and
not greater than 45 feet.
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.
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.
Authority to collect data—
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.
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.
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 intermodal freight facilities, including—
total street dwell time, from all causes, of marine containers and marine container chassis; and
the average out of service percentage, which shall not be identifiable with any particular port, marine terminal operators, or chassis provider.
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.
Sunset— The authority under this section shall expire December 31, 2026.
Sec. 3 Federal Maritime Commission activities
Public submissions to Commission— The Federal Maritime Commission (referred to in this Act as the Commission) shall—
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
direct each submission under the link established under paragraph (1) to the appropriate component office of the Commission.
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.
Enhancing capacity for investigations—
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.
Duties— The additional staff appointed under paragraph (1) shall provide support—
to Area Representatives of the Bureau of Enforcement;
to attorneys of the Bureau of Enforcement in enforcing the laws and regulations subject to the jurisdiction of the Commission;
for the alternative dispute resolution services of the Commission; or
for the review of agreements and activities subject to the authority of the Commission.
Sec. 4 Temporary emergency authority
Definitions— In this section:
Common carrier— The term common carrier has the meaning given the term in section 40102 of title 46, United States Code.
Motor carrier— The term motor carrier has the meaning given the term in section 13102 of title 49, United States Code.
Rail carrier— The term rail carrier has the meaning given the term in section 10102 of title 49, United States Code.
Shipper— The term shipper has the meaning given the term in section 40102 of title 46, United States Code.
Public input on information sharing—
In general— Not later than 60 days after the date of enactment of this Act, the Commission shall issue a request for information, seeking public comment regarding—
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;
whether an emergency order under this section would alleviate such an emergency situation; and
the appropriate scope of such an emergency order, if applicable.
Consultation— During the public comment period under paragraph (1), the Commission may consult, as the Commission determines to be appropriate, with—
other Federal departments and agencies; and
persons with expertise relating to maritime and freight operations.
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—
any inland destination or point of origin;
any vessel; or
any point on a wharf or terminal.
Description of determination—
In general— A determination referred to in subsection (c) is a unanimous determination by the commissioners on the Commission that congestion of common 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.
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 ocean 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.
Petitions for exception—
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.
Determination— The Commission shall make a determination regarding a petition for exception under paragraph (1) by—
majority vote; and
not later than 21 days after the date on which the petition is submitted.
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.
Limitations—
Term— An emergency order issued pursuant to this section—
shall remain in effect for a period of not longer than 60 days; but
may be renewed by a unanimous determination of the Commission.
Sunset— The authority provided by this section shall terminate on the date that is 18 months after the date of enactment of this Act.
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.
Sec. 5 Best practices for chassis pools
In general— Not later than April 1, 2023, the 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.
Requirements— In developing best practices under subsection (a), the Transportation Research Board shall—
take into consideration—
practical obstacles to the implementation of chassis pools; and
potential solutions to those obstacles; and
address relevant communication practices, information sharing, and knowledge management.
Publication— The Commission shall publish the best practices developed under this section on a publicly available website by not later than April 1, 2024.
Funding— Subject to appropriations, the Commission may expend such sums as are necessary, but not to exceed $500,000, to carry out this section.
Sec. 6 Licensing testing
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.
Permanent waiver— If the Administrator finds no safety concerns after conducting a review under subsection (a), the Administrator shall, notwithstanding any other provision of law, make the waiver permanent.
Rulemaking— Not later than 90 days after completing the review under subsection (a), the Administrator shall 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.