Investigation Into Conditions Created by Canadian Ballast Water Regulations in the U.S./Canada Great Lakes Trade, 6173-6175 [2022-02186]

Agencies

• Federal Maritime Commission

[Federal Register Volume 87, Number 23 (Thursday, February 3, 2022)]
[Notices]
[Pages 6173-6175]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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:
     Email: [email protected]. 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: www2.fmc.gov/readingroom/proceeding/20-10/.
    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: [email protected].

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, https://www2.fmc.gov/readingroom/proceeding/20-10/.
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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