FMC accepts petition as dispute with Canada over ballast looms

Malcolm Latarche

Malcolm Latarche · 22 May 2020

ShipInsight


A dispute is brewing between Canada and the US over the implementation of IMO ballast regulations by Canada in the Great Lakes.

The US Federal Maritime Commission has voted unanimously to accept a petition filed by the Lake Carriers’ Association (LCA) that alleges the ballast water regulations, as proposed by the Government of Canada, will discriminate against the US flag vessel operators.

The petition claims that under proposed Canadian rules ships operating entirely within the Great Lakes will be required to install ballast water treatment systems because the ships are considered to be trading internationally.

Canadaballast

In accepting the LCA petition, the Commission voted to initiate an investigation of the specific allegations set forth in their petition, to gather information and to solicit public comments. Based on that investigation, the Commission will consider all options, statutory remedies, and sanctions that are available under Section 19(1)(b) of the Merchant Marine Act, 1920, as amended (Section 19), codified in 46 U.S.C. ch. 421.

The investigation will examine the detriment and harm to the US flag fleet resulting from the proposed regulations.

The Commission has long been concerned about the proposed Canadian ballast water regulations and the effect it will have on the US flag Laker fleet. These concerns have been expressed to Transport Canada in meetings and phone conferences for several years.

By accepting the LCA petition and initiating the investigation, the Commission is not making a current determination that the proposed Transport Canada regulations are discriminatory; however, if the LCA petition allegations are substantiated through the Commission investigation, then the Commission will be in position to act expeditiously.

Section 19 of the Merchant Marine Act, 1920, provides the Commission with authority to investigate and sanction discriminatory conditions caused by laws, rules, or regulations of foreign governments. If the Commission finds that such regulations result in conditions unfavourable to shipping in a US-foreign trade, then Section 19 provides the FMC with several remedies that include: levying fines on vessels calling at US ports, prohibiting vessel calls at US ports, and restricting cargos that may be carried between the US and the foreign country.

Commissioner Carl W Bentzel said, “I am pleased that the Federal Maritime Commission has voted unanimously to accept a petition filed by the Lake Carrier Association. The petition alleges that ballast water regulations proposed by the government of Canada will discriminate against US-flagged vessels. The Commission’s action authorises an investigation to gather information and to take public comment. I remain committed to consider all views, all information and comment during the investigatory phase of this action.

However, as a preliminary perspective, I am concerned that the Canadian regulatory proposal implements requirements that were not envisioned as a primary focus of the IMO International Convention for the Control and Management of Ships’ Ballast Water and Sediments. The IMO treaty is intended to address the introduction of non-native aquatic species. The proposed Canadian regulation appears to go further than provisions regulating ballast water discharges into Canadian waters and would require US-flagged Laker vessels to install a ballast water management system to treat ballast water even if they only load, and do not discharge, ballast water in Canadian waters. I understand that US-flagged Laker carriers are willing to abide by Canadian regulations requiring a BWMS if they discharge their ballast water into Canadian waters. Seemingly, the Canadian regulatory proposal requiring vessels that only load ballast water to install a BWMS would have no impact on the introduction of non-native aquatic species into Canadian waters. Additionally, the actions of potentially restricting the upload of ballast water if a vessel does not have a BWMS could impact the navigational stability and safety of US-flagged vessels”.

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