[Federal Register Volume 89, Number 100 (Wednesday, May 22, 2024)]
[Notices]
[Pages 44979-44980]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-11189]
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FEDERAL MARITIME COMMISSION
[Docket No. FMC-2024-0008]
Investigation Into Conditions Affecting United States Carriers in
Connection With Canadian Ballast Water Regulation in the United States/
Canada Great Lakes Trade
AGENCY: Federal Maritime Commission.
ACTION: Notice of investigation and request for comments.
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SUMMARY: The Federal Maritime Commission (Commission) has initiated an
investigation into conditions created by the Government of Canada
(Canada) in connection with regulation of ballast water management
systems that may adversely affect the operation of United States
carriers in the United States/Canada Great Lakes trade.
DATES: Submit comments on or before June 21, 2024.
ADDRESSES: You may submit comments, identified by Docket No. FMC-2024-
0008, by the following method:
Federal eRulemaking Portal: Your comments must be written and in
English. You may submit your comments electronically through the
Federal Rulemaking Portal at www.regulations.gov. To submit comments on
that site, search for Docket No. FMC-2024-0008 and follow the
instructions provided.
FOR FURTHER INFORMATION CONTACT: For questions regarding submitting
comments or the treatment of any confidential information, contact
David Eng, Secretary; Phone: (202) 523-5725; Email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Introduction
Based on available information, it appears that conditions created
by the Government of Canada (Canada) in connection with regulation of
ballast water management systems may adversely affect the operation of
United States carriers in the United States/Canada Great Lakes trade,
in particular the carriers operating vessels that may become subject to
regulation in September 2024, within the meaning of 46 U.S. Code,
chapter 423 (Foreign Shipping Practices) (46 U.S.C. 42301-307). Title
46 U.S.C. 42302 authorizes the Federal Maritime Commission (Commission)
to investigate these conditions, and chapter 423 authorizes the agency
to take action in response.
II. Summary of Apparent Conditions
In 2020, the Lake Carriers Association (LCA) filed a petition with
the Commission as to pending Canadian regulation of ballast water
discharge on the Great Lakes. See FMC Docket No. 20-10, P1-20--Petition
of the Lake Carriers' Association Pursuant to Section 19 of the
Merchant Marine Act, 1920. LCA's petition alleged that Canadian
regulation scheduled to take effect in September 2024 would create
conditions unfavorable to shipping by requiring U.S. vessels to install
new ballast water management systems. LCA argued that this would impose
a severe burden while offering negligible environmental benefits, since
the relevant U.S. carriers (Lakers) take in but do not discharge
ballast water in Canadian waters. The petition asked the Commission to
investigate and adopt its own regulations in response. The Commission
opened an investigation under 46 U.S. Code, chapter 421 (Regulations
Affecting Shipping in Foreign Trade). See FMC Docket No. 20-10. In that
Chapter 421 proceeding, the FMC sought and received comments, including
from the Government of Canada. See FMC Notices, 85 FR 37453 (June 22,
2020), 87 FR 6173 (February 3, 2022); Comments of the Embassy of
Canada, Government of Canada, Docket No. 20-10 (Doc. No. 3) (July 22,
2020).
Since at least 2020, the U.S. Environmental Protection Agency (EPA)
has been engaged in rulemaking to consider similar regulation. See
Vessel Incidental Discharge National Standards of Performance, 85 FR
67818 (Oct. 26, 2020) (to be codified in 40 CFR part 139); Supplemental
Notice, 88 FR 71788 (Oct. 18, 2023). The EPA's October 2023
Supplemental Notice in that rulemaking indicates that the agency is
considering issuing a final rule that is less restrictive than the
regulation due to take effect in Canada, as it would require the type
of ballast water systems at issue only for covered vessels built in the
future. See 88 FR 71803-04 (explaining differences between proposed
regulatory option and relevant Canadian regulation); id. at 71,808
(``EPA proposes to define a New Laker as a bulk carrier that operates
exclusively on the Great Lakes and that is constructed after the
effective date of [U.S. Coast Guard] regulations promulgated pursuant
to [Clean Water Act] section 312(p)(5)(A)(i)'').
In February 2024, the LCA filed a public letter in the Commission's
Chapter 421 proceeding. See Docket No. 20-10 (Doc. 8) (Feb. 13, 2024).
The letter urged the Commission to move forward promptly. The LCA
emphasized that its members' Lakers would have to prepare to comply
with the stricter Canadian rules before the compliance date of
September 8, 2024, even though the EPA was unlikely to require them to
meet the stricter standards. Id. At 2-3. In addition, the letter stated
that these U.S.-flagged Lakers had been effectively prevented from
applying for an exemption or extension from the Canadian regulation,
because relevant procedures were not expected to be in place prior to
July 2024, despite the impending compliance date. Id. At 2, 4. The
letter confirmed that only five of the existing U.S. Lakers would be
affected by the regulation in September 2024 (one post-2008 vessel
already has the required equipment); the approximately 50 other U.S.
Lakers were built prior to 2009. Id. Attachment C. However, the LCA
argued that the five post-2008 Lakers would be compelled either to
install the required equipment, a ``multimillion dollar investment''
that they might well need to remove later in light of changing U.S.
requirements, or to ``walk away from the business.'' Id. At 4.
In light of the above, the Commission will, on its own motion, open
an investigation under 46 U.S. Code, Chapter 423 (Foreign Shipping
Practices). See 46 CFR part 555. In particular, the Commission will
investigate whether the laws, rules, policies, or practices of Canada
result in conditions that ``adversely affect the operations of United
States carriers in United States oceanborne trade'' and that ``do not
exist for foreign carriers of [Canada] in the United States under the
laws of the United States.'' 46 U.S.C. 42302(a). Such conditions may
exist here, in view of the LCA's allegations that U.S. carriers will
suffer significant adverse effects from the impending Canadian
regulation, but Canadian carriers operating in the United States are
not subject to comparable requirements under U.S. law. Under 46 U.S.C.
42302(c), the Commission is to complete its investigation and render a
decision within 120 days after it is initiated.
If the agency concludes that the standard of section 42302(a) is
met, it is
[[Page 44980]]
authorized to take certain actions to encourage remediation of those
conditions. Specifically, the Commission may take actions ``against any
foreign carrier that is a contributing cause, or whose government is a
contributing cause, to those conditions.'' 46 U.S.C. 42304(a).
Potential actions include imposing limits and/or fees on Canadian-
flagged vessels that visit U.S. ports and requesting that the U.S.
Department of Homeland Security and the U.S. Coast Guard refuse
clearance and deny entry of such vessels into the U.S., or detain such
vessels. See 46 U.S.C. 42304, 42305. Any such fees could be
substantial, as they are authorized by law at a level up to $2,559,636
per voyage. See 46 CFR 506.4. Under section 42304(b), the Commission
``may consult with, seek the cooperation of, or make recommendations as
to other appropriate agencies of the United States government'' prior
to taking such action. When the Commission initiates a Chapter 423
investigation, it will notify the U.S. Secretary of State and may
request that the Secretary ``seek resolution of the matter through
diplomatic channels.'' 46 CFR 555.7. Before any action is taken under
46 U.S.C. 42304 or 42305, the relevant determination is submitted for
Presidential review, within 10 days of receipt, under 46 U.S.C. 42306.
At this initial stage of the investigation, the Commission will
focus on providing a route for interested parties, including the
Government of Canada, as well as Canadian carriers operating in the
Great Lakes trade, to provide information, perspectives, and proposed
solutions.
III. Investigation and Initial Request for Comments
The Commission has determined that the above situation meets the
threshold requirements for consideration under the relevant statutory
and regulatory authority. See 46 U.S.C. 42302; 46 CFR 555.3, 555.5. The
Commission has therefore determined to initiate an investigation into
whether the situation has created conditions that adversely affect the
operations of United States carriers as described above. See 46 U.S.C.
42302; 46 CFR 555.5, 555.6. To that end, the Commission has designated
the General Counsel to lead an investigation into the conditions and to
prepare a report on the investigation's findings and recommendations
for Commission consideration.
Interested persons are requested to submit written comments
containing arguments, experiences, and/or data relevant to the above-
described conditions, with a particular focus on the situation of
vessels that will become subject to the Canadian regulation described
above in September 2024. It would be especially helpful for the agency
to receive comments addressing what options exist for carriers to seek
an exemption from the Canadian regulations going into effect in
September 2024, and whether any such processes differ based on whether
the carrier is a U.S. carrier or a Canadian carrier.
The Commission's jurisdiction under 46 U.S.C. 42302 is broad, and
the agency welcomes comments not only from the Government of Canada,
but also from container shipping interests, bulk cargo interests,
vessel owners, individuals and groups with relevant information on
commercial and environmental considerations, and anyone else with
relevant information or perspectives on this matter.
As the Commission proceeds with this investigation, it may
determine to request additional comment or gather information through
other means as authorized under 46 U.S.C. 42303 and 46 CFR 555.5,
555.6.
By the Commission.
Dated: May 16, 2024.
David Eng,
Secretary.
[FR Doc. 2024-11189 Filed 5-21-24; 8:45 am]
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