II 117th CONGRESS 1st Session S. 3262 IN THE SENATE OF THE UNITED STATES November 18, 2021 Mr. Wicker (for himself, Mrs. Capito , Mr. Moran , Mr. Young , and Mrs. Blackburn ) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation A BILL To improve the efficient movement of freight at ports in the United States, and for other purposes.

1. Short title This Act may be cited as the Facilitating Relief for Efficient Intermodal Gateways to Handle Transportation Act or the FREIGHT Act . 2. Definitions In this Act: (1) Commission The term Commission means the Federal Maritime Commission. (2) Secretary The term Secretary means the Secretary of Transportation. 3. Grant program to improve movement of freight (a) Definitions In this section: (1) Eligible entity The term eligible entity means— (A) a port authority; (B) a State entity; and (C) a local entity. (2) Program The term program means the discretionary grant program established under subsection (b). (b) Establishment Not later than 180 days after the date of enactment of this Act, the Secretary shall establish, within the Office of the Secretary, a discretionary grant program relating to improving the efficient movement of freight at ports. (c) Goals The goals of the program shall be to fund, through the provision of 1 or more grants, planning projects that— (1) identify what would be needed for eligible entities— (A) to standardize the definitions of terms used in port operations and related documentation, including— (i) terms used in bills of lading; (ii) the terms used to identify various port call processes; and (iii) terms used to notify relevant stakeholders that the freight of those stakeholders is available; or (B) to develop the technology needed to improve communication of eligible entities with respect to freight location, availability, and equipment among— (i) port authorities; (ii) marine terminal operators; (iii) shippers; (iv) rail carriers; (v) motor carriers and drayage providers; and (vi) other relevant stakeholders; and (2) result in a planning document described in subsection (e). (d) Application To be eligible to receive a grant under the program, an eligible entity shall submit to the Secretary an application, at such time, in such manner, and containing such information as the Secretary may require, including a description of the means by which the eligible entity will incorporate the views and input of other port stakeholders in identifying what would be needed to standardize the definitions described in subsection (c)(1)(A) and develop the technology described in subsection (c)(1)(B). (e) Planning document Each eligible entity that receives a grant under the program shall develop and submit to the Secretary, at such time as the Secretary determines to be appropriate, a planning document that— (1) identifies what would be necessary to standardize the applicable definitions; (2) identifies what would be necessary to develop the applicable technology; (3) includes input from relevant stakeholders, such as marine terminal operators, port authorities, State and local governments, ocean carriers, barge operators, motor carriers, rail carriers, drayage providers, chassis providers, and freight forwarders and brokers; and (4) addresses concerns regarding data privacy. (f) Project requirements (1) Federal share The Federal share of the total costs of a project for which a grant is provided under the program shall be not more than 50 percent. (2) Maximum grant amount The maximum amount of a grant provided under the program shall be $1,000,000. (3) Eligible expenses A grant provided under the program may be used for eligible project expenses, including— (A) communications hardware and software; (B) data management hardware and software; and (C) planning and engineering costs. (g) Grant information At the request of an eligible entity that receives a grant under the program, the Secretary shall provide to the eligible entity information relating to other grant programs offered through the Department of Transportation under which the planning projects of the eligible entity under the program may be considered to be an eligible activity. (h) Lessons learned The Secretary shall— (1) analyze the information contained in each planning document submitted under subsection (e); and (2) develop and make publicly available lessons learned with respect to standardizing port definitions and communications technology based on that information. (i) Authorization of appropriations There is authorized to be appropriated to the Secretary to carry out this section $2,500,000 for fiscal year 2023. 4. Study on documentation and terms used in freight transportation Not later than 180 days after the date of enactment of this Act, the Secretary shall enter into an agreement with the National Academy of Sciences under which the National Academy of Sciences shall carry out a study— (1) to identify and document— (A) the documentation, the data and information exchange, and other actions necessary to transport freight from a point of origin overseas to a destination in the United States, or from a point of origin in the United States to a destination overseas, including transportation of the freight— (i) from the point of origin to an ocean carrier; (ii) on an ocean carrier; (iii) through any port; and (iv) by rail or truck from a port to the destination; (B) whether and how the key terms used in that documentation or the data and information exchanged, or to describe various actions to move freight, vary depending on— (i) the type of freight being moved; (ii) the mode by which the freight moves; (iii) whether the freight is required to be moved by multiple modes; (iv) the State or region in the United States from, through, or to which the freight moves; (v) the port or marine terminal operator; (vi) the origination or destination of the freight; and (vii) other relevant criteria; and (C) recommendations with respect to means to rationalize existing terms, documentation, and data and information exchanged to enable port stakeholders to better track and manage freight transfer and delivery; and (2) to assess and determine— (A) the data held and shared across existing, separate data systems used in international transportation across different modes of transportation, with respect to methods to link those data across the existing, separate data systems; (B) the best methods to link and enable effective exchange of those data across existing systems, both domestically and internationally; (C) methods to standardize data obtained from long-standing separate data systems; and (D) gaps in existing data and technology standards that would be necessary to address the development of systems to allow port stakeholders to better track and predict— (i) the location of freight at ports; (ii) the availability of freight for pickup; and (iii) the ability to receive and return equipment at ports. 5. Dwell time statistics (a) Definitions In this section: (1) Director The term Director means the Director of the Bureau of Transportation Statistics. (2) Dwell time The term dwell time , with respect to a piece of equipment, means the quantity of time during which the piece of equipment is— (A) subject to maintenance; or (B) in use. (3) Marine container The term marine container means an intermodal container with a length of— (A) not less than 20 feet; and (B) not greater than 45 feet. (b) Authority To collect data (1) In general Each port, marine terminal operator, and chassis provider 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. (2) Approval by OMB The Director of the Office of Management and Budget shall approve an information collection for purposes of this section by not later than 60 days after the date of enactment of this Act. (c) Publication 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, including— (1) total dwell time, from all causes, of marine containers and marine container chassis; and (2) at a minimum, maintenance dwell time and in-use dwell time of marine containers and marine container chassis. (d) Factors To the maximum extent practicable, the Director shall publish the statistics described in subsection (c)— (1) on a local, regional, and national basis; and (2) at major coastal and inland port facilities. 6. Federal Maritime Commission activities (a) Public submissions to Commission The Chairperson of the Commission shall— (1) 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 (2) direct each submission under the link established under paragraph (1) to the appropriate component office of the Commission. (b) 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. (c) Enhancing capacity for investigations (1) 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. (2) Duties The additional staff appointed under paragraph (1) shall provide support— (A) to Area Representatives of the Bureau of Enforcement; (B) to attorneys of the Bureau of Enforcement in enforcing the laws and regulations subject to the jurisdiction of the Commission; (C) for the alternative dispute resolution services of the Commission; or (D) for the review of agreements and activities subject to the authority of the Commission. 7. Best practices for chassis pools (a) 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. (b) Requirements In developing best practices under subsection (a), the Transportation Research Board shall— (1) take into consideration— (A) practical obstacles to the implementation of chassis pools; and (B) potential solutions to those obstacles; and (2) address relevant communication practices, information sharing, and knowledge management. (c) Publication The Commission shall publish the best practices developed under this section on a publicly available website by not later than April 1, 2024. (d) Authorization of appropriations There is authorized to be appropriated to the Commission to carry out this section $500,000. 8. Enhancing anti-retaliation protections (a) 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. . (b) Conforming amendments (1) Section 41104 of title 46, United States Code, is amended— (A) in subsection (a)— (i) by striking paragraph (3); and (ii) by redesignating paragraphs (4) through (13) as paragraphs (3) through (12), respectively; (B) in subsection (b), by striking subsection (a)(13) and inserting subsection (a)(12) ; and (C) in subsection (c), by striking subsection (a)(13) and inserting subsection (a)(12) . (2) 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) . (3) 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) . (4) Section 41305 of title 46, United States Code, is amended— (A) 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 (B) 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) . (c) 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 . 9. Relief available in enforcement proceedings (a) Assessment of penalties Section 41109 of title 46, United States Code, is amended— (1) 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. ; (2) 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 ; (3) in subsection (e), by inserting or order a refund of money after penalty ; (4) in subsection (f), by inserting , or that is ordered to refund money, after assessed ; and (5) in subsection (g), in the first sentence, by inserting or a refund required under this section after penalty . (b) Enforcement of reparation orders Section 41309 of title 46, United States Code, is amended— (1) 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 (2) in subsection (b), in the first sentence— (A) by striking made an award of reparation and inserting ordered a refund of money or any other award of reparation ; and (B) by inserting (except for the Commission or any component of the Commission) after parties in the order . 10. Port infrastructure performance (a) Port and intermodal improvement program (1) 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. (2) Data-sharing agreement (A) 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). (B) 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. (C) 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. (3) Inclusions The data referred to in paragraph (2)(A) include data collected by a qualifying port authority relating to— (A) the total capacity of inbound and outbound cargo; (B) the total volume of inbound and outbound cargo; (C) the average number of lifts per hour of containers by crane; (D) the average vessel turn time, expressed by vessel type; (E) the average cargo, container, and intermodal equipment dwell time; (F) port storage capacity and utilization; (G) modal throughput statistics, including— (i) rail statistics; and (ii) 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 ); (H) the types of cargo moved; (I) the presence and location of any intermodal connectors; (J) the physical size of each terminal within applicable port boundaries; (K) maximum authorized channel depth and maximum actual and current channel depth; (L) the schedule of vessel arrivals, for use in determining vessel on-time performance; (M) berth utilization; and (N) any additional metrics, as determined by the Secretary. (4) Origin requirement The data required to be submitted under this subsection shall originate from a port authority of a qualifying port authority grant recipient. (5) 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. (6) 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). (b) 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— (1) in subparagraph (A), by striking and at the end; (2) by redesignating subparagraph (B) as subparagraph (C); and (3) by inserting after subparagraph (A) the following: (B) administer the port and intermodal improvement program under section 50302(c) of title 46; and . 11. Temporary emergency authority (a) Definitions In this section: (1) Common carrier The term common carrier has the meaning given the term in section 40102 of title 46, United States Code. (2) Motor carrier The term motor carrier has the meaning given the term in section 13102 of title 49, United States Code. (3) Rail carrier The term rail carrier has the meaning given the term in section 10102 of title 49, United States Code. (4) Shipper The term shipper has the meaning given the term in section 40102 of title 46, United States Code. (b) Public input on information sharing (1) 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— (A) 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; (B) whether an emergency order under this section would alleviate such an emergency situation; and (C) the appropriate scope of such an emergency order, if applicable. (2) Consultation During the public comment period under paragraph (1), the Commission may consult, as the Commission determines to be appropriate, with— (A) other Federal departments and agencies; and (B) persons with expertise relating to maritime and freight operations. (c) 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— (1) any inland destination or point of origin; (2) any vessel; or (3) any point on a wharf or terminal. (d) Description of determination (1) 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. (2) 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. (e) Petitions for exception (1) 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. (2) Determination The Commission shall make a determination regarding a petition for exception under paragraph (1) by— (A) majority vote; and (B) not later than 21 days after the date on which the petition is submitted. (3) 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. (f) Limitations (1) Term An emergency order issued pursuant to this section— (A) shall remain in effect for a period of not longer than 60 days; but (B) may be renewed by a unanimous determination of the Commission. (2) Sunset The authority provided by this section shall terminate on the date that is 1 year after the date of enactment of this Act. 12. Additional transportation representation Section 1325(a) of title 49, United States Code, is amended— (1) in the matter preceding paragraph (1), by striking 19 members, of which 15 members and inserting 24 members, of whom 18 ; and (2) in paragraph (3)— (A) by redesignating subparagraphs (A) and (B) as clauses (i) and (ii), respectively, and indenting appropriately; (B) 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 ; (C) in subparagraph (A) (as so designated)— (i) in clause (i) (as so redesignated), by striking and at the end; (ii) in clause (ii) (as so redesignated), by striking organizations (as determined by the Chairman). and inserting organizations, as determined by the Chairman; and ; and (iii) by adding at the end the following: (iii) at least 1 shall be a representative of marine terminal operators or ports. ; and (D) 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). . 13. Permanent waiver (a) 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. (b) 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.