Notice2022-02186
Investigation Into Conditions Created by Canadian Ballast Water Regulations in the U.S./Canada Great Lakes Trade
Primary source
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Published
February 3, 2022
Issuing agencies
Federal Maritime Commission
Abstract
Because of developments within Canada and the United States, the Federal Maritime Commission (Commission) is seeking additional public comments on a petition filed by the Lake Carriers' Association (Petitioner) alleging that conditions created by the Government of Canada (Canada) are unfavorable to shipping in the United States/Canada trade.
Full Text
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<title>Federal Register, Volume 87 Issue 23 (Thursday, February 3, 2022)</title>
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[Federal Register Volume 87, Number 23 (Thursday, February 3, 2022)]
[Notices]
[Pages 6173-6175]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-02186]
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FEDERAL MARITIME COMMISSION
[Docket No. 20-10; Petition No. P1-20]
Investigation Into Conditions Created by Canadian Ballast Water
Regulations in the U.S./Canada Great Lakes Trade
AGENCY: Federal Maritime Commission.
ACTION: Request for comments.
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SUMMARY: Because of developments within Canada and the United States,
the Federal Maritime Commission (Commission) is seeking additional
public comments on a petition filed by the Lake Carriers' Association
(Petitioner) alleging that conditions created by the Government of
Canada (Canada) are unfavorable to shipping in the United States/Canada
trade.
DATES: Submit comments on or before March 7, 2022.
ADDRESSES: You may submit comments, identified by Docket No. 20-10, by
the following method:
<bullet> Email: <a href="/cdn-cgi/l/email-protection#3744525445524356454e77515a5419505841"><span class="__cf_email__" data-cfemail="4e3d2b2d3c2b3a2f3c370e28232d60292138">[email protected]</span></a>. For comments, include in the
subject line: ``Docket No. 20-10, Comments on Conditions Created by
Canadian Ballast Water Regulations in the U.S./Canada Great Lakes
Trade.'' Comments should be attached to the email as a Microsoft Word
or text searchable PDF document.
Docket: For access to the docket to read background documents or
public comments received, go to the Commission's Electronic Reading
Room
[[Page 6174]]
at: <a href="http://www2.fmc.gov/readingroom/proceeding/20-10/">www2.fmc.gov/readingroom/proceeding/20-10/</a>.
Unless otherwise directed by the commenter, all comments will be
treated as confidential under 46 U.S.C. 42105 and 46 CFR 550.104.
FOR FURTHER INFORMATION CONTACT: For questions regarding submitting
comments or the treatment of confidential information, contact William
Cody, Secretary; Phone: (202) 523-5725; Email: <a href="/cdn-cgi/l/email-protection#384b5d5b4a5d4c594a41785e555b165f574e"><span class="__cf_email__" data-cfemail="b9cadcdacbdccdd8cbc0f9dfd4da97ded6cf">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Introduction
On March 6, 2020, the Lake Carriers' Association (Petitioner), a
trade association made up of U.S. owners and operators of vessels
serving the Great Lakes (Lakers), filed a petition alleging that
conditions created by Transport Canada, an agency of the Government of
Canada, are unfavorable to shipping in the United States/Canada trade,
pursuant to Section 19(1)(b) of the Merchant Marine Act, 1920 (Section
19) codified in 46 U.S.C. 42101. Section 19 authorizes the Federal
Maritime Commission (Commission) to investigate these conditions and to
adopt regulations to ``adjust or meet general or special conditions
unfavorable to shipping in foreign trade''. In this instance, the
Petitioner requested that the Commission adopt regulations in order to
remedy a condition it alleges will result in irreparable harm to
Petitioner's members which are U.S. flag owners and operators of
vessels on the Great Lakes.
Specifically, Petitioner argued that then-proposed regulations by
Transport Canada which require the installation of ballast water
management systems (BWMS) on Laker vessels serve no environmental
purpose and because the cost of compliance is prohibitively high for
U.S. vessels, Petitioner suggests that the real purpose of the
regulations is to drive out U.S. vessels from this trade. Petitioner
asked the Commission to issue a regulation to meet the unfair
competitive conditions created by Transport Canada based on a finding
that the Canadian regulations create conditions unfavorable to the
Petitioners. Petitioner provided a proposed regulation that would
assess a fee of 300,000.00 U.S. dollars each time a Canadian vessel
enters any U.S. port.
On June 16, 2020, the Commission issued a Notice of Investigation
and Request for Comments (Notice). In the Notice, the Commission
concluded the petition met the threshold requirements for consideration
under the Commission's regulations and initiated an investigation into
whether the proposed Transport Canada regulations create unfavorable
conditions to shipping in the foreign trade of the United States.
Notice of Investigation and Request for Comments: Canada Ballast Water
85 FR 37453 (June 22, 2020). The Commission designated the Deputy
Managing Director to lead an investigation into the Petitioner's
allegations and to prepare a report on the investigation's findings and
recommendations for Commission consideration. Id at 37454.
As an initial step in the investigation, the Commission requested
that interested persons submit views, arguments and/or data on the
Petition. Between June 22, 2020, and July 22, 2020, the Commission
received 21 comments. Id. The majority of comments received by the
Commission supported the Petition and a small minority opposed. One
main objection to the petition, raised by the Embassy of Canada in
Washington, DC,\1\ was that the regulatory process was ongoing, and,
because the proposed regulations by Transport Canada were not final,
any Commission action would be premature.
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\1\ Unless otherwise directed by the commenter, all the comments
received were treated as confidential. The Embassy of Canada
requested that its comments not be treated as confidential, and they
are available in the FMC reading room, <a href="https://www2.fmc.gov/readingroom/proceeding/20-10/">https://www2.fmc.gov/readingroom/proceeding/20-10/</a>.
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II. Additional Developments
Since the issuance of the June 2020 Notice and the subsequent
receipt of comments, there have been developments which impact the
Commission's consideration of the Petition including proposed rules
within the United States and the finalization of the Canadian rule.
On October 26, 2020, the Environmental Protection Agency (EPA),
published a Notice of Proposed Rulemaking, Vessel Incidental Discharge
National Standards of Performance, in the Federal Register. See Notice
of Proposed Rulemaking: Vessel Incidental Discharge National Standards
of Performance, 85 FR 67818 (October 26, 2020). Like the proposed
Canadian rule, the EPA's proposed rule intends to reduce the
environmental impact of vessel discharges, such as ballast water.
Though similar in intent, the EPA's approach to Great Lakes ballast
water in their proposed rule did not align with the proposed Canadian
approach and will not have an effect on the U.S. Great Lakes fleet. The
Notice of Proposed Rulemaking required that comments be received on or
before November 25, 2020. The EPA's next action is not expected until
sometime in 2022.
On June 23, 2021, Transport Canada issued its final rule. The
general approach to the regulation of Great Lakes ballast water did not
change. However, while the effective date of the final rule remains
2024, the rule delayed implementation until 2030 for vessels built
prior to January 1, 2009.
III. Investigation and Additional Request for Comments
The Commission is continuing to investigate whether the proposed
Transport Canada regulations create unfavorable conditions to shipping
in the foreign trade of the United States. The Deputy Managing Director
position no longer exists, and the Commission has therefore designated
the General Counsel to lead the ongoing investigation into the
Petitioner's allegations and to prepare a report on the investigation's
findings and recommendations for Commission consideration. Considering
the developments noted earlier, the Commission desires additional
information. Thus, in furtherance of this investigation interested
persons are requested to submit views, arguments and/or data on the
Petition no later than 30 days after this publication. Submitted
comments may address any aspect of the petition, but the Commission is
specifically interested in comments on the following topics:
A. The application of the final Canadian regulation. The Commission
believes that a majority of the U.S. flagged commercial vessels
operating on the Great Lakes were built prior to 2009. The Commission
seeks more information about the specific number of U.S. vessels to
which the Canadian rule will apply, and the timing for when the
Canadian rule will apply to those vessels.
Pre-2009: How many U.S. flag vessels operating on the Great Lakes
in the U.S./Canada trade were built prior to January 1, 2009?
Post-2009: How many U.S. flag vessels operating on the Great Lakes
in the U.S./Canada trade were built in 2009 or later?
Historical Trade: For both categories of vessels, what is the
amount or percent of their historical and anticipated Canadian trade
relative to their U.S. trade? Please specify the measure used to
quantify the answer, for example is the measure based on the value of
goods/revenue, the number of port calls, or any other metric.
Canada/U.S. Flagged: What amount or percent of the historical trade
is carried by U.S. flagged vessels and what
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percent is carried by Canadian flagged vessels? Please specify the
metrics used to quantify the answer.
B. The impact of the final Canadian regulation. The Commission
believes that the phased implementation of the Canadian rule could
delay, and possibly eliminate, the impacts of the rule on a portion of
U.S. flagged vessels. The Commission seeks specific information about
the types of impacts and the timing of those impacts relative to the
2024 and 2030 implementation dates. The Commission also seeks
information about the overall impact, if any, of final Canadian
regulation on the Commission's consideration of the Petition:
Contractual Impacts: Will the final Canadian regulation affect the
ability of U.S. flag vessels to negotiate contracts for the U.S./Canada
trade? What are the specific or estimated economic impacts? When will
any economic impacts first be realized?
Repair/Design Impacts: At what date will affected U.S. flag vessels
be impacted by vessel repair/design considerations in order to achieve
compliance with the Canadian regulations? What are the estimated costs
of compliance under the final Canadian regulation?
Business Model: Will the final Canadian rule drive any changes in
business models for U.S. flagged vessels?
For any impacts identified above, please be specific as to when an
economic impact will present and upon what data the impact is based.
Please identify any distinctions in impacts based on type of cargo,
vessel, expiration date of contract, implementation date of proposed
contract or type of carriage agreement.
C. Other considerations. The Commission's role in this
investigation is solely to determine if there exist ``conditions
unfavorable to shipping in foreign trade'' under 46 U.S.C. 41201. In
making this determination there are other matters that may be outside
the control or the authority of the Commission but nevertheless should
be considered during the Commission's investigation and
recommendations.
EPA Rule: How should the Commission consider the status of the
EPA's proposed rule?
International Convention: Is the 2004 Ballast Water Management
Convention (International Convention for the Control and Management of
Ships' Ballast Water and Sediments, 2004) relevant to this Petition? Is
the Canadian rule required or optional under the Convention? Have other
parties to the Convention enacted a similar provision?
Developments: What industry or scientific developments have an
impact on this Petition? Have there been any relevant developments
since the Commission's initial request for comments in June 2020?
Changes: Have any of the analyses or projections provided to the
Commission by the Petitioner changed? If so, provide the Commission
with any data that has changed since the filing of the Petition and
that has not been captured through answers to the questions above.
D. Commission's future actions. The Commission's investigation is
ongoing and will consider all relevant information and potential
actions, including:
Other Information: Do other sources of relevant information or data
exist that should be considered? Where is that information/data
located?
Fee: The original petition requested that the Commission issue a
regulation that would assess a fee of 300,000.00 U.S. dollars each time
a Canadian vessel enters any U.S. port. Is this request still valid and
are there other corrective actions that should be considered, including
requests to other agencies under 46 U.S.C. 42102(a)?
Comments in response to the questions above, or other feedback,
should include objectively quantifiable data to back up any numerical
or statistical information provided rather than generalized
information/arguments for or against the petition.
By the Commission.
Issued: January 28, 2022.
William Cody,
Secretary.
[FR Doc. 2022-02186 Filed 2-2-22; 8:45 am]
BILLING CODE 6730-02-P
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