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Home > Books > Sustainable Development - Authoritative and Leading Edge Content for Environmental Management

GIS for Environmental Problem Solving

Submitted: 14 December 2011 Published: 01 August 2012

DOI: 10.5772/50098

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Sustainable Development - Authoritative and Leading Edge Content for Environmental Management

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Author Information

Koushen douglas loh.

• Department of Ecosystem Science and Management, Texas A&M University, USA

Sasathorn Tapaneeyakul

*Address all correspondence to:

1. Introduction

The authors are affiliated with the Laboratory of Systems Technology Applications in Renewable Resources (The STARR LAB) at Texas A&M University. The purpose of this chapter is to provide a synopsis of the cumulative research and teaching work for the past twenty years from the STARR LAB. The aim of chapter is to demonstrate holistic understandings of what key environmental issues and problems people are facing and how their concerns may be addressed with the help of geographic information systems (GIS).

We are the environments, and the environments are us. There are many environmental issues and problems the society is facing. Some major categories include environmental disasters, ecological services, and perceptions of environments by people, just to name a few. In terms of environmental disasters, hurricanes, earthquake and wildfires are some examples that exert enormous direct impacts on people’s lives. Their increasing recurrences have elevated public awareness on the vulnerability and risks of the environments we live in. An awareness of environmental issues leads to an increase in people’s perceptions regarding the surrounding environments. There are many factors contributing to such perceptions. Combined considerations of pertinent factors result in an overall perception. One plausible combined index is called quality of life (QOL). QOL is a practical measurement of the state of an environment. Environmental awareness also raises people’s concerns on the sustainability of the ecological services. Ecological services refer to public goods, tangible or intangible, rendered to us by environments and ecosystems. Air, water, food, fiber, and fuel we consume are good examples. Sustaining these services is of great importance to all environmental stakeholders.

There are many ways to help stakeholders gain insights to environmental issues and problems. One handy approach is the use of GIS. GIS are systems of hardware, software, data, people, organizations and institutional arrangements for collecting, storing, analyzing and disseminating information about areas of the Earth [ 1 ]. Such technologies enable analyses of spatial-temporal patterns for a geographic span of interest and generations of easy-to-comprehend reports such as maps and images. GIS are maturing and proliferating rapidly in parallel to the quantum leap of personal computer (PC) platforms. It greatly enhances people’s ability to know about their environments. Given the advantages, GIS have emerged as a popular subject matter among interested learners on college campuses as well as in environmental fields. A good indicator of this assertion is the sustaining popularity of Environmental GIS courses the authors teach at Texas A&M University. Other institutions are reporting a similar phenomenon.

All things considered, it is timely to provide a rundown of GIS for Environmental Problem-Solving as a chapter of this book. Main thrusts of our presentation consist of four parts. They are: 1) Introduction (this section); 2) Research method; 3) Illustrations of GIS for environmental problem solving applications; and 4) Concluding remarks.

2. Research method

Systems approach is a key research method to incorporate GIS into problem-solving process in addressing environmental issues and problems. The essence of this approach is to envision and to enact relevant endeavors into a cohesive sequence of steps. The whole process is called developing and implementing a GIS project. A typical sequence of steps in a GIS project includes framing the problem, defining a project area, identifying and acquiring data, extracting and preparing data, editing spatial data, geospatial analysis, and generating maps and reports.

2.1. Framing the problem

The first step in solving any problem is to frame the problem. The purpose of this step is to help narrow down the scope and identify the problem to make it easier to solve. This helps address the questions you want to answer. Specifically, what do you want to accomplish from looking at this problem? What are the goal and objectives you are planning to address from the problem?

Then, the next question is what is the potential information associated with the problem? Pertinent information includes:

Scope: To lay out tasks, data, and time frame to solve a problem, a scope needs to be defined so that you know how much information you are dealing with. The scope varies depending upon the nature and objectives of the problem. Questions on whether the problem is looking at a specific region, a particular group of population, or a particular phenomenon are worth investigating. Also, is the problem asking for information, maps, or more in-depth analysis of the problem?

Scale: Is the problem focusing on an institutional scale (individual, family, municipal, state, national, or international) and/or ecological scale (plant, plot, ecosystem, landscape, biome, or global)? As addressed in [ 2 ], stakeholders at different spatial scales can (and should) assign different values to environment and ecosystem under interest.

Type of information: two distinctive types of information are quantitative and qualitative. You need to specify if the problem is looking for quantitative and/or qualitative information. Quantitative information focuses on some sort of value or measurable information. Number of population affected by a hurricane or the amount of oil spilled into an ocean are quantifiable. Qualitative information, on the other hand, represents some sort of status that needs to be stated. Wildlife species affected by a hurricane or types of chemical released into a river are some of the examples.

It is also helpful to construct an outline or diagram of the problem so that it is easy for you and/or stakeholders to determine necessary steps, to better organize the tasks, and to be able to comprehend the problem at hand.

Consider the following real world examples using the above criteria:

Example 1: The 2005 Hurricane Katrina

The scope is the Hurricane Katrina in New Orleans, Louisiana. This pertains to the Greater New Orleans Region. Information of interest includes population affected, infrastructural damage, hazardous materials, and situations that might arise afterward. Given this information, one possible answer is the number of population affected as the quantitative information. Quantitative information includes, but not limited to, current stage of hazardous waste, groups of population, animal species, and housing.

Example 2: Bastrop County Complex Fire

The scope is a major wildfire in Bastrop County, Texas in 2011. Information of interest is effects on both human and animal, economics losses, effects on land and environments, and infrastructural damage. With the defined information, possible answers include the number of affected people and animals, income losses from the incident, and the loss of species’ habitats, which are accounted as quantitative information. Households and habitats affected by the fire, problem of land degradation and fragmentation, time frame for recovering, and preventive plans are some of the qualitative information that seeks answers.

Example 3: West Nile Virus in Brazos County

Brazos County, Texas and the surrounding areas is the scope of interest. Became widespread in the recent years (with the highest number of 7 severe cases in human being accounted for in 2006 [ 3 ]), West Nile virus has been under surveillance for residents in the County. Critical information that needs to be asked include: What causes the West Nile virus?; How can you track the spread of the West Nile virus?; and Where has West Nile virus been found in this location? Quantitative answers are the current number of infected individuals and the past records. Possible locations and trends that may be associated with the spread of the West Nile virus serve as the qualitative answer to the problem.

2.2. Defining a project area

With an identified problem, you can proceed to define a project area. This step delineates a confined boundary of an area of interest. The information from Step 2.1 helps specify the proper location where the problem occurred and address the possible questions and answers under interest. The process pinpoints the focus of the problem while eliminate unnecessary areas or secondary scope of interest from the picture. Not only that this can help save time, but it also allows you to pay closer attention to the essence of the project. At this stage, the conceptual project area should be carefully thought out before attempting to acquire data, i.e., map layers, in the next step.

• ArcGIS is a registered trade mark of Environmental System Research Institute (ESRI), Inc.

For example, one may select an administrative boundary of a local jurisdiction from a base map layer as the project area as in the cases of Bastrop County Complex Fire and West Nile Virus in Brazos County. One may also “union” multiple local jurisdictions into a broader geographic span for addressing issues that are of cross-boundary nature. The project boundary resulted from one way or another serves as the “cookie cutter” for clipping data from relevant layers and tables in the ensuing steps to expedite problem-solving. As in the case of Hurricane Katrina, at least five parishes (Louisiana’s equivalent of counties in other states) should be included as the project area of the Hurricane analysis.

2.3. Identifying and acquiring data

Once the project area is defined, the next step is to locate and acquire needed data. Before looking for data, the methodology needs to be analyzed to establish what data is needed. The most important question that needs to be answered is: Why do I need this data? If the data is truly needed, then this question is easily answered. If not, then the data is most likely not necessary to solve the problem.

To be able to work with data in GIS, you need to understand the nature and procedural steps of working with data in GIS as follows:

2.3.1. GIS datasets formats

Typical formats of datasets, which allow you to conveniently work with multiple information or map layers, include spatial and attribute data.

Spatial data comes in the forms of raster and vector and is generally organized into so-called layers or thematic maps.

Raster data is digital image composed by rectangular grids or cells that contain numeric information from a defined range to characterize geographic features. Digital Elevation Model or DEM is a form of raster data important in depicting a terrain. It provides crucial information on the topologies of a geographic span.

Vector or shapefile data is constructed as points, lines, and polygons to represent geographical features.

Attribute data is information used to describe characteristics of a locale. The data is organized in a table containing information linked to a spatial feature by a common identifier. This gives you details or certain types of information associated with each specific feature.

2.3.2. GIS data sources

• See http://geo.data.gov/geoportal/ for more information.
• See http://www.tnris.org/get-data/ for more information.

2.3.3. Map projections and coordinate systems

Each map layer contains a coordinate system, which allows one to identify the location of the map and to be able to display, manipulate, and integrate the map layer with other layers for further applications and analysis. It is therefore imperative to understand the fundamentals of map projections and coordinate systems.

A coordinate system is a grid that may be used to define where a particular location is. Two common types of coordinate system are:

Geographic Coordinate System: This uses 3D spherical surface to define locations. Often incorrectly referred to as datum, geographic coordinate system includes not only datum, but also angular unit of measure and prime meridian. Points on Earth’s surface are referenced by latitude and longitude, while angles are measured by degree.

Projected Coordinate System: Commonly referred to as map projections, projected coordinate system is defined on flat, 2D surface with constant lengths, angles, and area. X, Y coordinates are presented on grid. It is based on geographic coordinate system.

See [ 4 ] for further explanations on coordinate systems

2.4. Extracting and manipulating data

The fourth step is data extraction and manipulation. In this step, one is to extract data from a conceivably larger original source file. Reduction of the size of datasets and their consolidation expedite the ensuing data management and processing. The project area defined at the onset (the cookie cutter) dictates the extent and size of data to be extracted and prepared.

Typically, data acquired may exist in various forms and shapes, e.g. different coordinate systems and file formats. It is a MUST to prepare and consolidate all datasets into a commonly operable format. GIS have a database management system component to support the proper management of both spatial and attribute data. It also enables convenient linking and relating of various data records by their locations on a common coordinate system. Some common tasks you will encounter during the data extraction and manipulation steps are as follows:

Re-projecting data: This is a basic essential step in any analysis using GIS. The purpose is to convert a particular piece of data from one coordinate system to another. Working with GIS employs more than one map layer, therefore acquired datasets may contain different projections. Different data projections lead to distortion of data and inaccuracy in the analysis.

For example, in Figure 1 , a residential area polygon (in blue) is projected to Geographic Coordinate System: GCS_North_American_1983. The same residential area polygon (in yellow) is in Projected Coordinate System: NAD_1927_UTM_Zone_16N. As shown in Figure, there are some discrepancies in the map layers with different coordinate systems. If this re-projection step is not taken, any analysis preformed will be inaccurate leading to much larger problem in subsequent analysis with multiple layers.

Conversion of raster to vector: Not only data comes in different coordinate systems, the file formats can also be varied; most commonly in the forms of raster or vector (shapefile). Especially with the growing use of GIS, datasets in shapefile have become more available. Shapefile data usually comes embedded with attribute data, which allows user to easily select and manipulate the information of interest. Therefore, converting a raster file to vector enables user to intersect other data with the available vector data. Suppose you have acquired and managed shapefile layers of affected area by Hurricane Katrina and population layer in the Greater New Orleans Region, by intersecting these two layers, you can extract the areas in which population were affected by the Hurricane.

Reclassification: To extract specific data from a raster, i.e., specific elevation data, reclassification is performed. Given the Hurricane problem, flooding can be assessed as one major result of the incident. In order to extract only the flooded area resulted from the Hurricane, reclassification is utilized to distinguish a specific range of elevation in which flooding occurred from others. This will allow you to analyze the effects pertaining to the flooded area.

Selecting by attributes: The purpose is to extract desired attribute data for analysis. This can be done through conditional statement imposed in attribute data table to select only specific information of interest. Considering an attribute table of chemical sites located within the Hurricane flooding zone, one can select only specific sites containing particular chemicals of interest for further analysis and map report.

Exporting data: To make a temporary layer permanent in a current map, data resulted from steps such as that of above need to be exported and saved in a current working folder. Otherwise, the file may be lost or difficult to locate when you want to revisit and work on it.

Same layer file with different coordinate systems resulting in 20-meter difference on the map.

2.5. Editing spatial data

Oftentimes, acquired data might not be in the most suitable shape or boundary for problem under consideration. Options to edit spatial data in GIS allow one to manage the data in such a way that is more manageable and ready to be analyzed.

Typical editing tools consist of creating new features, cutting polygons, modifying features, and extending the basic skills to other tasks such as clipping a feature to a desired shape and area.

Creating new features: When creating a new feature, a blank data set is being defined by the editor. A blank data set is like an empty pie shell, while creating a new feature is like filling the pie shell. This task is only used if a new feature is desired or a single part feature is to be converted into a multi-part feature when the second part of the feature does not already exist.

Cutting polygon features: This process is a shortcut to creating a multi-part feature from a single part feature. Simply put, this process is used like a set of scissors to cut an existing feature into multiple parts.

Modifying features: This task is used when an existing feature does not cover the area that is desired. The attribute data will remain the same, while the feature will be modified to suit one’s need.

Clipping features: Clipping is a process that is like using a “cookie cutter” to remove a portion of a feature permanently. The attribute data will also be changed due to a permanent removal of the feature.

2.6. Geospatial analysis

Upon data readiness, a project may move on to the sixth step of spatial-temporal analyses. There are many useful procedures for these endeavors. Especially with the versatilities of GIS software, one can utilize extended range of applications available. Some common tools that one should be familiar with and were used specifically for the ensuing applications in this chapter include:

Distance analysis: A suite of tools to produce distance maps are commonly available in GIS. In ArcGIS, distance tools are available under Spatial Analyst option. Euclidean distance tool measures straight-line distance from the center of cell to the nearest object of interest, i.e., your source. Another alternative is the cost distance tool, which incorporates travel cost from different paths into the analysis. The products from these tools are distance maps in raster representing proximity maps with a range of distance values from the source. For instance, one can find proximities from pollution sources at defined interval to any locales within a defined area map.

Map algebra: Another useful application, which you will encounter at certain point of analysis, is map algebra. This can be used for computations of raster data to create spatial patterns that depict locales of a particular concern or interest. Raster calculator, a Spatial Analyst application, allows for this useful procedure by inputting specified mathematical functions and expressions in the calculator. The result will be raster values and layer corresponding to the specified function.

The use of analytic procedures mentioned above and other tools in a proper order results in useful information for a problem under study.

2.7. Generating maps and reports

The final major step is to generate maps and reports. One picture is better than a thousand words. To this end, GIS come handy in presenting information in maps, images, 3D graphs, tables, and other forms. It also expedites the import and export of these presentations between GIS and other software environments, e.g. a word or a graphic processor. With the acceleration of PC powers, the sky is the limit to GIS’ capability of generating maps and reports. It is worth noting that you should understand what the readers are looking for when creating the maps and write ups, i.e., what is the focus or message that you want to communicate to others? This should align with the proposed information of interest.

Diagram of problem-solving steps

3. Illustration of GIS for environmental problem solving applications

To illustrate how GIS are used to help address environmental issues and problems, two cases are described herewith in this section. The first one is on flood assessment, and the second is a QOL analysis. The applications help prepare for the building framework of spatial appraisal and valuation of environment and ecosystems (SAVEE), which will be discussed in the following section, tremendously.

3.1. Flood assessment

Considered one of the costliest [ 5 ] and most destructive natural disasters in the history of the United States, Hurricane Katrina provides a number of opportunity to understand the risk of nature, and how one could expect to understand and learn from such disastrous effects. The aforementioned problem-solving steps allow us to contemplate the steps as follows:

Step 1: Framing the problem

An analysis of the scenario indicated that Hurricane Katrina occurred in the Greater New Orleans Area. Field measurements and distributions on the majority of victims indicated that roughly those under 1 meter in elevation were initially affected by the flooding [ 6 ]. Given this information, the scenario was that every location below 1 meter in elevation was affected and any location that is above this level was unaffected by the flood water. This particular area of impact needed to be delineated. The information of interest included area and population affected by the Hurricane. Additional scenarios of water-rise were then set for 5, 10, and 15 meters to emulate different levels of flooding.

Step 2: Defining the project area

In this case, the City of New Orleans and its five neighboring parishes suffered by the storm were identified as the study area.

Step 3: Identifying and acquiring data

The best type of data for delineating the affected area is the elevation data (DEM). DEMs, Satellite Imagery, and Census datasets were collected from Atlas, the GIS data central from the State of Louisiana [ 7 ]. This included DEM, jurisdiction boundaries, street maps of the study area, and Census data.

Step 4: Extracting and preparing data

Initially, the DEM and Census data came projected as GCS_North_American_1983. By assigning a projected coordinate system to the data, further analysis could be proceeded. Given the information, we projected the data to NAD_1927_UTM_Zone_16N. Hillshades of the DEMs were also generated to visually inspect different elevations in the data. Sink holes pervaded in the DEMs were also been filled to prevent erroneous and prepare for proper flow direction process.

Then, the second crucial step was to extract the flooded area from the total area. This employed the reclassification process in which the elevation value was changed to 1 meter to separate the flooded area from the non-flooded area (elevation above 1 meter). In short, the reclassification divided the elevation data into the flooded area and the non-flooded area. The rest of the water-rise scenarios then followed using the same reclassification step as well as the ensuing steps.

Next, this flooded elevation data was converted into vector to prepare for further analysis. The converted flooded layer was the result of the conversion process as well as exporting the data into a new permanent flooded area layer.

In terms of the Census data, the parishes were merged into one layer so that it was more convenient to work with in the subsequent steps for analyzing the total effect on population.

Step 5: Editing spatial data

The acquired data contained certain parts that were irrelevant to the analysis. Lake Ponchartran, for instance, should not be counted toward the flooded area. Therefore, by editing the data, some unnecessary information of interest were taken out. Pertinent steps of editing the lake included: 1) Creating a new blank shapefile; 2) Using the blank shapefile as the base for editing tools to create a new feature around the lake area; and 3) Using the newly created feature as a cookie cutter to clip off the lake area from the flooded area layer. The result was the flooded area without the lake that was ready to be incorporated into other analysis.

Step 6: Geospatial analysis

At this stage, socio-economic analyses were conducted to assess the damage and impact on the livelihoods of residents of the affected areas. Census data developed was used directly for this purpose. Combining census data with the emulated flooded areas, patterns of suffering by which racial stakeholders and by what economic classes were clearly displayed.

Based on the flooded area layer in Step 5 , we proceeded to calculate the area under the layer’s attribute table. Visual Basic Code to calculate the area (available from [ 8 ]) or a Calculate Geometry option, an automated tool in ArcGIS, derived the numbers of area affected by the Hurricane. Mathematical formula imposed helped convert the numbers into desirable units such as acres.

Benefited from the above numbers, the population affected was conveniently calculated. Census data contains racial information that represents groups of population in different parishes. By intersecting the flooded area layer with the merged parishes layer, representing population profile in the areas, affected population was extracted. The overall statistics in the attribute table identified the total population affected by the flooding. Figure 3 demonstrates map layers resulting from the above problem-solving steps.

Step 7: Generating maps and report

Upon generating desired information and analysis, each pertinent map was composed as a map report containing a map title, legend (showing values of the map layer), north arrow, and scale bar. Then, the map reports were exported as image files to be included in a report. The report addressed the finding results of effects from the Hurricane as illustrated by the maps and relevant discussions of further applications and analysis that can later be applied based on this project.

Illustrations of selected problem-solving steps for flood assessment in reference to the 2005 Hurricane Katrina flooding in the Greater New Orleans Region.

3.2. Quality of life assessment

QOL is emerging as a major indicator to monitor citizen’s livelihood and wellbeing at the grassroots level. By virtue of its focuses, QOL helps inform local people and organizations of their living environment and optimize the allocations of resources to improve the community development. Canada is perhaps more aggressive in setting up a national framework for QOL [ 9 ]. In the U.S., states such as Utah [ 10 ]; cities such as San Francisco, California [ 11 ]; and organizations, including nonprofit organizations such as the Quality of Life Foundation [ 12 ] have been vigorously promoting such term as one of their agendas.

Categories of data to support the development of QOL indicators range from education, environment, economics, social, and justice to transportation/mobility. However, the use of GIS to track QOL progress is still at its infancy stage. City of College Station, Texas, with its advanced GIS installation and rich collection of data, stands to gain a lead role in this area and to provide even superior services to its residents when it embarks on this path.

There are three issues and opportunities in the development of QOL indicators. They are:

Combining subjective values with objective measurements to create consensus and develop common ground to accommodate multiple perspectives of stakeholders.

Combining the use of both spatial and attribute information to develop base layer and indices in environment, crimes, recreation, etc. For example:

Overlay of census blocks with subdivisions or other neighborhood entities (e.g. apartment complex) to establish the baseline reference (population, its composition, income level, education level, and number of household of an entity)

Overlay of crime type, frequency, and location data with entities on the base layer

Developing a composite score (ranking) of QOL for each neighborhood entity on the base layer

As you set forth to do your research, as in the case of QOL assessment, you are most likely facing with three puzzling situations:

1. Pertinent data/information comes in a variety of forms

It is plausible that the data/information you are facing and plan to collect exists in at least two forms. They are categorical and numeric. Examples of categorical information include “Yes” or “No” on whether a city (or any local jurisdiction) has a neighborhood improvement in place or not program; “Very Good,” “Good,” “Fair,” and “Bad” on how such a program is being regarded by the communities; and “Highly favorable,” “Favorable,” and “Least Favorable” on how service rendered by the program is perceived by the beneficiaries.

Quite often, information of categorical nature is derived from one’s “gut feeling.” It may also be convenient to summarize some judgments based on historical data, on some kinds of trends, or on some opinion surveys/polls.

There are two types of numeric information: discrete and continuous. Population of an ethnic group residing in a particular Census unit is an example of discrete type. Example of continuous type is the percentage of an ethnic group versus the total population in such a unit.

2.How to “add” “oranges” and “apples”

When one has data and information of various types in hand, he/she will ask this question:

“How do I add them together?” Indeed, you cannot add oranges and apples together at their original forms. The trick is to convert and normalize all of them into the same numerical scale, say between -1 and +1.

So, what is normalization? Normalization is the act of taking many sets of data that have no clear correlation and placing them under the same quantitative scale. Essentially, normalization allows us to compare apples and oranges. Some decisions must be made prior to normalizing any type of data. The questions include:

What are the important factors?

Which factors are positive and which factors are negative?

How much should each of these factors count in relation to the overall project?

For categorical type of information, what you do is to fix the “best” and the “worst” at +1 and -1 respectively. This is plausible as +1 can represent the best case and -1 the worst. When both ends are fixed, one may logically deduce that a numeric value of “0” represents “Inconclusive.” Furthermore, one may come up with a scheme saying that “+0.25” is “somewhat better”, “+0.5” is “better” and “+0.75” is “much better.” One can also say that “-0.25” is “somewhat worse”, “-0.5” is “worse”, and “-0.75” is “much worse.” As a result, you are converting and normalizing categorical or qualitative data into numeric or quantitative information as illustrated in Figure 4 .

Illustration of the qualitative – quantitative information conversion scheme.

For numeric information, the conversion and normalization is less complicated. Say you deem the ratio of white population in a Census unit at 50% is the best mix (most favorable), in terms of quality of life; 100% or 0% is least favorable. For the best mix, you believe it should be given a score of +1 and for the least favorable a 0. Given this range, you may apply the following equations to convert and normalize the percentage into values in the range (0,+1)

where E is the expected (best value of x)

Another method is to convert distance to an object from such measurements as miles to the uniform score between (-1 and +1). For example, one may decide that the presence of oil well is bad for quality of life. Evidently, the household right at the oil well would have absolutely unfavorable score of -1. The negative effect most likely would tap off as the distance reaches certain threshold, e.g. 1 mile or 5,280 feet. The tapering effect can then be described by a negative exponential equation as:

where x is the distance to oil well(s)

The normalization equation for strictly negative attribute based on the negative exponential equation above becomes:

The translation of the equation is “If Condition < X, True, False.” This means if an input value (distance value) falls under the condition (less than X), then the output is negative value. Otherwise, the output is zero. It might be helpful to put this in the oil well scenario above:

The above equation is set so that if the distance to an oil well is less than 1 mile, then the output is negative. As the locales get closer to the actual oil wells path, the more negative they will become (with the minimum at -1). At a distance of 1 mile or greater all the output values are set to zero as shown in Figure 5 .

Negative decay graph showing the more negative values as the locales get closer to oil wells.

At any rate, once you have all factors converted and normalized into the scheme of (-1, +1), then the values can be “operated” on to add up their contributions to the overall quality of life assessment of a city. This is done by applying the following formula:

The method is derived from an expert system algorithm called Emycin [ 13 ]. The operations utilize map algebra calculation to integrate two values at a time, i.e., pair-wise calculation, while avoiding the problem of double-counting. The calculations are performed iteratively until all normalized layers are exhausted. As illustrated in Figure 6 , the operation calculates the values of two attributes at a time to derive the final score, which is the integration of the values in all attributes. Through fuzzy logic operations, two QOLs (different factor contributing to QOL) can be integrated at a time until all QOLs are exhausted. Iteration 1 integrates QOL 1 and QOL 2 so that only the overlapping portion of both factors values remains. By taking this portion to integrate with another QOL, QOL 3 , the final result is the overlapping portion among three factors; QOL 1 , QOL 2 , and QOL 3 .The results can be color-coded as a gradient map of integrated and locale-specific QOL in the range of (-1, +1).

The nicety of the Emycin formula is that:

Regardless of the number of factors being used, you always “operate” on two of them in each iteration. This is called pair-wise calculation.

Depending on the score values of the two factors, there will be only one of the equations that is applicable.

Unlike many “ordinary” algorithms, this formula allows both positive and negative contributions from factors under considerations, which is more realistic.

Regardless of the number of factors being considered and operated on, the resulted score will always be bounded between -1 and +1.

Regardless of the sequence each factor is put into pair-wise calculation, the result is always the same.

Once all factors are exhausted in the calculation, one can always convert the result back to the qualitative scheme to make it more comprehensive to lay persons or people one intend to interpret the results to.

A word of caution: Both -1 and +1 are “singular” points. In other words, if you come up with a score on the contribution of a factor to be either -1 or +1, then other factors’ contributions will not matter anymore. This is not a surprise or unreasonable. Because -1 means absolutely “bad” and +1 means absolutely “good.” When you have a factor that determines the quality of life to be absolutely bad, then indeed why bother to waste time to assess other factors?

To this end, one may want to adjust or shift the score from a factor that is somewhat different from the absolute values of -1 or +1 so that the pair-wise calculation may proceed logically. Again, this is not unreasonable as there is hardly anything that one can claim that is absolutely good or bad.

Illustration of pair-wise calculations.

3. Incomplete information

An additional nicety to the above approach is that one can proceed to conduct studies under incomplete information. The condition of incomplete information actually happens quite often in real life. With the kind of flexibility boasted by Emycin, you “add” the contributions from whatever data you are able to get your hand on for a city in determining its quality of life. In the case of comparing multiple cities, you may get this and that for one jurisdiction while not the same categories for all of them. By nature of the conversion, normalization, and pair-wise calculation, you would be able to derive scores on the same scheme and will be able to make comparisons.

With better understanding on the assessment framework, it is time to put such theory into real application.

The information of interest for this case is the factors contributing to the QOL of a city/community. Relevant questions include:

What defines a high quality of life?: This depends on who the target audience is: elderly community, students, or married couples.

What factors can contribute to the QOL?:

Distance to: hospitals, schools, university, parks, landfill, oil wells, etc.

Census Data Analysis: racial mix, relative income of a population, and number of children per household

In the case of the QOL assessment, the project area was the City of College Station, Texas.

Step 3: Identify and acquiring data

Acquiring data from the City’s GIS Department is crucial. From the rich collection of datasets rendered by the City [ 14 ], a number of data layers were selected for the ensuing analysis endeavor. They included census data, roads and streets, railroads, parks and green spaces, residence subdivisions, landfills, oil wells, schools, hospitals, flood plains, crime statistics, and many more.

DEMs for College Station were acquired and converted into raster. This represented the base map of College Station for the following steps. Selecting only the areas pertaining to College Station attribute was also another important preparation step since we were looking at the QOL in College Station and nothing else.

Basemap that contains areas beyond College Station were clipped off, and only the College Station boundary was left for the analysis.

Based on the identified QOL factors, proximities to parks, green spaces, schools, hospitals, and some other geographic features were regarded as positive contributing factors. On the other hand, closeness to such factors as landfills, oil wells, railroads, crime occurrences, and flood plains were considered to have negative impacts. The contributions of these factors, positive or negative, were mathematically formulated as distance functions from objects on corresponding data layers. In the ensuing steps, proximity maps encoded with distance functions were generated. The results from each factor layer were then combined with fuzzy logic calculation to form an integrated index between (-1, 1). Any number greater than 0 indicated a good QOL with anything below 0 representing bad index. The index was coded in a color scheme with a gradient from red to green. The color-coded QOL maps displayed clearly the patterns of QOL of the City at every specific neighborhood and locale.

To better illustrate this, four QOL factors, QOL 1 , QOL 2 , QOL 3 , and QOL 4 , were used as an example for the calculation (see Figure 7) . The first fuzzy operation employed two QOLs, QOL 1 and QOL 2 , to derive QOL 12 . The locales within defined proximity to QOL 1 were color-coded in green representing high QOL with the values approaching 1. On the other hand, those in red represented low QOL with the values approaching -1. Next, QOL 12 was integrated with QOL 3 resulting in QOL 123 . The last operation was QOL 123 and QOL 4 as shown in the final integrated map of QOL 1234 . The map results in the color gradient reflecting more green in the portion where high QOLs overlap (in the middle of the map) while the outer portion becomes more yellow to orange as a result of integrated low QOLs.

At this stage, twenty sample residential addresses were selected and tabulated in a table. By linking this table to the Address Locator tool in ArcGIS, the residential addresses were shown as a point shapefile on the map. To pinpoint the QOL of each selected address, Identify Tool was used to indicate the QOL index associated with such address.

Map reports of this project were individually created to reflect normalized layer of each factor contributing to QOL. The normalized values (within -1 to 1 range) were shown in the legend to reflect the results from the analysis. The combined layers resulted from Emycin algorithms were exported into a group of combined layer of strictly positive factors, combined layer of strictly negative factors, and combined layer of the combination of positive and negative factors. The report concludes how QOL assessment was made possible with useful applications of GIS. Future development of applications from the QOL assessment such as the linkage to SAVEE framework was also discussed.

The QOL index illustrated in the above example sheds light on the shape of things to come with SAVEE. First of all, one may acquire the land price and/or real estate information from local authority of a jurisdiction. Using the SAVEE methodology, such information can be converted into the (0, 1) range for services provided by specific environments and ecosystems in an area. Similarly, the QOL index above may also be computed in the same range. Spatial statistical analyses can then be conducted to determine correlation between land prices and QOL. Useful information may be thus generated to pave way for “spatial acres of an environment or ecosystem”.

4. Concluding remarks

The chapter depicts the natures and categories of environmental issues people are facing and how GIS can be deployed to help address them. In the context of environmental problem-solving, the systems approach for applying GIS is presented; and a few practical cases are illustrated. This organization casts a holistic view for readers to gain better comprehension of the subject matter.

Iteration of map algebra to incorporate fuzzy logic to compute contributions of relevant factors to locale-specific QOL in College Station, Texas.

Problem-solving starts with shaping a mental model on to formulate a solution to the issue at hand. Steps of the solution process are then implemented through the use of appropriate data and tools enabled by GIS. Skills and knowledge to facilitate these endeavors can be best advanced by hands-on practices. For this purpose, interested readers may access the full set of documentation of learning modules at http://starr.tamu.edu/gis2012a/. The materials are from a senior course the authors teach at Texas A&M University. It bears the same title as this chapter, “GIS for Environmental Problem-Solving.” First conceived in the 1990s, the course has gained and maintained its popularity among the student bodies. The learning modules include well-organized step-by-step instructions of applications in ArcGIS presented in this chapter. Being offered online since 2006, this course has proven to be easy yet comprehensive for self-learning, even among students with no prior GIS background.

It is worthwhile mentioning that the approach mentioned above is for a typical GIS project for environment. There is, however, usually one step short. That is asserting monetary values associated with the environment. This issue is emerging as a priority matter in the environmental research community. For example, the monetary losses from the BP Oil Spill in the Gulf of Mexico are yet to be more plausibly determined. Taking on this issue, the authors here at the STARR LAB are developing a new research methodology called Spatial Appraisal and Valuation of Environment and Ecosystems (SAVEE). The aim of this effort is to define “spatial acre” that attaches monetary values to a geographic span of interest.

One main thrust of SAVEE is to cross-reference economic development and ecological sustainability in the framework of Sustainable Development declared in the 1992 Earth Summit and being enhanced continuously ever since. Economic development is tangible and comes with a price tag. It is plausible to assume that the intensity of development of a locale of interest can be reflected in its real estate value, which is generally available. Sampling some locales of their real estate values leads to a price list of real estate values. This price list is then converted into a uniform range between 0 and 1, a well-behaved index representing the intensity of development of locales. On the other hand, ecological sustainability of an area of interest normally does not come with a price tag. However, one may systematically incorporate pertinent ecological services it renders into consideration and develop an index that has the same range of (0, 1). The numbers approaching 1 represent higher sustainability, and the opposites represent lower indices. On the basis of equitability between development and environment, the two index systems may then be mapped. The mapping leads to assigning monetary values associated with development sites to ecological locales with comparable index numbers.

Learning is a life-long process; so are the advances of knowledge and technologies. On the environmental GIS front, asserting monetary values to a system under study has become an imperative. The authors are hopeful that the general framework stipulated in SAVEE shall be advanced to explore this new territory. Only labeling it with dollar signs would make stakeholders appreciate more of our environment of its values. After all, without such dollar values, it is difficult for stakeholders and authorities to understand the magnitude of the environmental problems at hand. It is contended that SAVEE and other similar effort will make a significant contribution to environmental sectors in general and the advancement of GIS.

• 3. West Nile Virus Activity in Brazos County [Internet]. College Station (TX): AgriLIFE Extension; Agricultural and Environmental Safety; 2012 cited 2012 April 21]. Available from: http://www-aes.tamu.edu/public-health-vector-and-mosquito-control/brazos-county-mosquito-borne-disease-surveillance/west-nile-virus-activity-in-brazos-county/
• 4. Maling D.H 1991 Coordinate Systems and Map Projections for GIS. In: Maguire D.J, Goodchild M.F, Rhind D.W, editors. Geographical Information Systems: Principles and Applications. London: Longman Group UK. 1 135 146
• 5. Knabb R.D, Rhome J.R, Brown D.P 2006 Tropical Cyclone Report: Hurricane Katrina: 23 30 August 2005. National Hurricane Center.
• 7. Atlas: The Louisiana Statewide GIS [Internet]. Baton Rouge (LA): Louisiana State University CADGIS Research Laboratory; 2009 cited 2012 April 23]. Available from: http://atlas.lsu.edu/
• 8. ArcGIS Desktop 9.3 Help [Internet]. Redland (CA): Environmental Systems Research Institute; 2008 cited 2012 April 23]. Available from: http://webhelp.esri.com/arcgisdesktop/9.3/index.cfm?TopicName=Sample_VBA_code
• 9. Atlas of Canada Quality of Life [Internet]. Place unknown]: National Resources Canada; 2009 cited 2012 April 23]. Available from: http://atlas.nrcan.gc.ca/auth/english/maps/peopleandsociety/QOL
• 10. The Utah Foundation Quality of Life Index: First Biennial Survey Reveals Strengths, Weaknesses [Internet]. Salt Lake City (UT): Utah Foundation; 2011 cited 2012 April 27]. Available from: http://www.utahfoundation.org/img/pdfs/rr703.pdf
• 11. City and County of San Francisco as Successor to the Redevelopment Agency [Internet]. San Francisco: San Francisco Redevelopment Agency; 2012 cited 2012 April 27]. Available from: http://www.sfredevelopment.org/
• 12. The Quality of Life Foundation [Internet]. San Francisco: The Quality of Life Foundation; [Date unknown] [cited 2012 April 27]. Available from: http://www.qualityoflifefoundation.org/
• 14. GIS- Geographic Information Services [Internet]. College Station (TX): City of College Station GIS; 2001 cited 2012 April 29]. Available from: http://www.cstx.gov/index.aspx?page=3683
• See [4] for further explanations on coordinate systems

© 2012 The Author(s). Licensee IntechOpen. This chapter is distributed under the terms of the Creative Commons Attribution 3.0 License , which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited.

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Sustainability Concepts in Decision-Making: Tools and Approaches for the US Environmental Protection Agency (2014)

Chapter: 7 applying sustainability tools and methods to strengthen environmental protection agency decision-making.

7 Applying Sustainability Tools and Methods to Strengthen Environmental Protection Agency Decision-Making

In consideration of the various tools and approaches addressed in previous chapters of this report, this chapter discusses the evolving framework for sustainability and EPA decision making, including opportunities to make sustainability the integrating core of the agency’s strategic planning process and embedding the use of sustainability tools into its activities.

Throughout the history of the US Environmental Protection Agency (EPA), various major decision-making frameworks have guided policy choices covering a variety of public-health and environmental issues. In the agency’s formative years, the frameworks included the application of technology-based standards to restrict emission and effluents from specific sources or source categories; the development of health-based standards to protect drinking-water supplies or ambient-air quality; and the establishment of registration processes and application rates for pesticides and their designated uses. Those and other decision-making frameworks constituted a response to statutory requirements and an expression of the evolution of institutional practices among agencies that preceded the formation of EPA (Portney 1978; Lave 1981).

The publication of the National Research Council’s 1983 report Risk Assessment in the Federal Government: Managing the Process was another major inflection point in EPA’s decision making frameworks. The formalization of risk assessment and risk management processes had been evolving in EPA in the 1970’s, but they received more direct and official codification by a series of policy pronouncements issued by several EPA administrators in the 1980s and beyond (NRC 1983). 1 Rather than displacing earlier frameworks however, the risk-assessment–risk-management paradigm added to the scientific tools and approaches used by EPA in implementing its statutory authorities.

Through a combination of statutory changes or through its own initiatives, additional frameworks and approaches continued to supplement EPA’s policy toolkit through the 1980s and later years, including:

• The adoption of pollution prevention as a method for examining pollution-reduction opportunities before the point of effluent, emission, or waste generation or discharge.

• The development and implementation of incentive-based offset and “cap and trade” control measures (plant-specific and regional) for such issues as acid-deposition precursors, including nitrogen oxides and sulfur oxides.

• The establishment of an expanded number of voluntary initiatives aimed at accelerating the reduction of toxic emission, expanding energy efficiency, and other objectives.

• The initiation of cross-statutory or multisector initiatives that aspired to identify and manage tradeoffs among statutes to maximize both environmental protection and economic efficiency.

____________________

1 EPA’s Science Advisory Board provided further guidance to EPA in using risk-based decision-making in its report Reducing Risk: Setting Priorities and Strategies for Environmental Protection (EPASAB 1990).

• The development of more robust initiatives with state and local authorities to address regional air-quality and water-quality problems (such as ozone and fine-particle pollution in the mid-Atlantic and Northeast corridor and regional watershed-management planning for the Great Lakes or Chesapeake Bay). 2

In recent years, EPA has begun to examine and introduce elements of sustainability-related thinking into research and development, method development, federal procurement guidelines, and strategic planning. For example, EPA’s FY 2014–2018 strategic plan incorporates a number of sustainability-relevant initiatives into the agency’s five Strategic Goals, Cross-Cutting Fundamental Strategies and Strategic Measurement Framework (EPA 2014a).

EPA’s decision making frameworks function in parallel and are in various states of transition, but they are not in integrated relationships with each other. In that respect, EPA’s FY 2014–2018 strategic plan mirrors those discontinuous relationships, and it is unclear how the decision making frameworks support each other in executing the agency’s mission. Given that each decision making framework has its own set of implementing tools and methods, it is important that EPA achieve greater internal consistency, clarity, and priority-setting among these tools and their applications.

EPA should consider the present transition in its decision making approaches as an opportunity to evolve towards making sustainability the integrating principle of its strategic planning process. The committee urges EPA to continue in its efforts to adopt or adapt the sustainability framework presented in Sustainability and the U.S. EPA , the so-called Green Book (NRC 2011a). (Recommendation 7a)

The advantages of such an evolution include:

• Enabling EPA to achieve greater clarity of purpose in its various regulatory and non-regulatory programs.

• Aligning the agency’s sustainability tools and approaches and their implementation with global, regional, and local megatrends; market developments; and stakeholder leader expectations.

• Gaining access to newer tools and methods that have emerged in recent years from private sector and non-government organization (NGO) partnerships, universities, and other stakeholders (examples of some of the tools and methods are cited and illustrated in the present report).

• Building new relationships with thought leaders in multiple institutions to design innovative sustainability tools.

• Providing greater clarity and understanding of EPA’s mission and value to the American people at a time of public uncertainty over many public-health and environmental issues and EPA’s role in resolving them.

“NUDGING THE FUTURE”: THE ENVIRONMENTAL PROTECTION AGENCY’S EVOLVING ROLE IN MANAGING SUSTAINABILITY ISSUES

Numerous government reports, scholarly analyses, and private-company investments attest to the growing importance of mitigation and adaptation strategies necessary to respond to problems as varied as climate change, natural-resource scarcities, public-health protection, and building of more sustainable communities. 3 As the concept of adaptation advances, there are direct implications for how government

2 EPA’s Common Sense Initiative and Project XL were prominent examples of these types of initiatives in the 1990s.

3 Examples of such reports include City of New York 2014; IPCC 2014; World Economic Forum 2014.

agencies and private-sector organizations need not only to revise policy frameworks but to recast their own institutional capabilities, resilience, and assessment and implementation tools in a clear and predictable manner that is consistent with their missions and responsibilities.

In EPA’s 4.5 decades of existence, there have been many instances in which it has adapted its identification of priorities to recognize new generations of problems (for example, naturally occurring exposures to radon gas and the phaseout of chlorofluorocarbons and successor chemicals to protect the stratospheric ozone layer), modified its implementation strategies to take account of innovative thinking (for example, emission trading and offset initiatives and agreement for testing of high-production-volume chemicals), and developed new tools and approaches for managing public-health and environmental challenges (for example, the formalization of risk-assessment guidelines and the development of a risk-screening model to identify potential risks earlier in the chemical-development process and to encourage substitutions).

EPA has a major opportunity to embed sustainability considerations further in its decision-making methods and to communicate and disseminate its application of sustainability tools and approaches outside the agency. EPA should pursue this embedding throughout the agency. (Recommendation 7b)

The committee has identified four kinds of major activities (derived from Table 2-1 ) in which EPA has substantial opportunities to apply sustainability tools and approaches to the extent practicable under budget constraints. Each is consistent with the agency’s existing statutory authorities and, in fact, builds on initiatives previously implemented.

Setting and Enforcing Regulatory Standards

Furthering the incorporation of sustainability as a core principle of EPA’s mission includes consideration of fundamental public-health and environmental protections related to a suite of air, land, and water issues that are administered at the federal, state, and local levels of government. To ensure effectiveness and accountability, baseline standards and their enforcement are periodically reviewed to account for new scientific information, technologic innovation, and reviews of program effectiveness. Supplemented by such tools as data-quality management, risk assessment, life-cycle assessment (LCA), economic analysis, peer review, management systems, public participation, and other forms of transparency, EPA’s standard-setting and enforcement roles provide an important basis of additional efforts in advancing toward more sustainable health, environmental, and economic outcomes. That approach is similar to that used in the private sector, in which sustainability strategies and initiatives have been designed and implemented on the basis of an original structure of environmental, health, and safety policies and management systems.

As part of its continuous strategic planning efforts, EPA should consistently review opportunities to insert sustainability concepts, tools, and methods to strengthen evaluations of its existing regulatory policies and simultaneously apply these sustainability approaches to emerging challenges. (Recommendation 7c)

In any discussion of standards (regulatory and nonregulatory)—whether they are outgrowths of statutes, outcomes of deliberations of professional bodies (such as those developed by the International Organization for Standardization), or results of obtaining consensus about best practices related to specific issues (such as pollution prevention)—the critical barometer of success is the outcome of application of the standards. Standard-setting is a core role of EPA, not merely through the implementation of its statutory authorities but through collaborative efforts with other organizations to address the suite of sustainability challenges related to its mission.

One of the critical future challenges to both EPA and the private sector will be the need to increase the scale of its environmental and quality-of-life improvements. Individual companies, even when successful, are limited in their scaling potential by the individual markets that they serve.

EPA—in collaboration with the private sector, NGOs, multilateral institutions, and other national governments—should evaluate existing best practices to identify opportunities for increasing the scale of the benefits of sustainability decision-making within the United States and around the world. (Recommendation 7d)

Managing and Synthesizing Data

EPA is responsible for collecting, managing, and interpreting a number of diverse databases for a variety of policy decisions. These efforts range from support of air-quality monitoring stations to evaluate compliance with National Ambient Air Quality Standards in specific air sheds, review of water-discharge data to assess compliance with National Pollutant Discharge Elimination System permits, analysis of data submitted by chemical manufacturers to assess whether to allow new chemicals to enter the marketplace under the Toxic Substances Control Act, and the collection and publication of Superfund Amendments and Reauthorization Act Title III data.

Beyond program-specific data collection and analysis, EPA has for many years performed the role of data manager and synthesizer. The agency’s Integrated Risk Information System (IRIS) is an international resource for business, government, and the public to gain access to information on individual chemical profiles as a basis for regulatory policy decisions, discussions of community risks, and risk-management decisions taken by individual companies and consumers. IRIS provides a platform for public discussion and exchange of information; it provides access to scientific tools and enables users to link to related databases. Other agencies have adopted the IRIS concept to implement their missions.

EPA has a major opportunity to build on data initiatives, such as IRIS, by becoming a data manager and synthesizer for a growing number of information-management challenges, including

• Synthesizing and interpreting data to aid the investment community— EPA could assist such organizations as the Sustainability Accounting Standards Board and the Securities and Exchange Commission in collecting and synthesizing general-public comments and provide advice on public-health and environmental issues that are material to the performance and governance of corporations.

• Filling information gaps— EPA could collect and aggregate databases that bear on the materials used in the sourcing, manufacture, distribution, and use in a host of consumer products. There are major gaps in individual companies’, government agencies’, and consumers’ knowledge as to the ultimate disposition of economically valuable materials that can also present health and environmental risks if they are not subject to a cradle-to-cradle system of material recovery and reuse. The development of information-management capability would be a critical step in the advance of infrastructure for sustainable material-management policies.

• Monitoring and surveillance to identify problems and trends— EPA could search for patterns and trends among databases that would yield insights into health and environmental outcomes. As owners and tenants of homes, offices, and other commercial buildings begin to install “smart” information technologies that measure energy and water consumption, for example, their measurement devices will provide data that, when aggregated, can yield important information about emission, natural-resource consumption, and other indicators useful to consumers, businesses and service providers, and public-policymakers. Another opportunity for pattern recognition and outcomes analysis lies in the synthesis of a growing number of databases that are reporting greenhouse-gas emission. Improved transparency in shale-gas operations, for example, would yield data and trend analysis that can assist operating companies in working collaboratively to design best practices to capture or prevent the release of methane.

Those instances of data management and synthesis represent important opportunities to expand public and stakeholder engagement in decision-making for environmental sustainability. By becoming a greater catalyst for transformational transparency, EPA can unlock new opportunities for innovation in the application of publicly available information and for developing methods applicable to its own and stakeholders’ needs. Chapters 4 and 5 of this report provide specific examples of how the private sector and other institutions have made use of these opportunities—and the associated tools that support them—to improve sustainability outcomes.

Convening for Collaboration for System-Level Solutions

A growing number of major sustainability challenges transcend specific environmental media or markets. For example, attempts to reduce or eliminate the disposal of residua in landfills depend increasingly on collaboration among a variety of important economic decision-makers, including providers of raw materials, packaging companies, and producers, retailers, and consumers of manufactured goods. No single institution or group has the capability to design an effective solution to reduce or eliminate the landfilling of such residua. Instead, an empowered convener has the opportunity to leverage the various parties involved in related economic activities for the common good.

There are structural impediments to the private sector’s ability to serve in such a convening role. They include antitrust considerations, competitive interests that militate against the direct disclosure of information to rival companies, and periodic public skepticism about the private sector’s credibility or motivation.

Such impediments do not exist when the convener is a major government agency that has legal authority to invite major economic actors and their stakeholders into a collaborative, problem-solving process. EPA’s history contains many examples of its application of convening authority, including voluntary initiatives with companies to report reductions of high-priority toxic releases, acquisition of data from testing of high-production-volume chemicals, development of test methods for identifying endocrine-disruption potential, and conducting formal regulatory negotiations as a precursor to formal rulemaking on such issues as residential wood heaters, equipment leaks from chemical processes, and cleaner fuel development.

Further developing EPA’s role as a convener would have several advantages, including

• Obtaining access to scientific and other data generated by less traditional sources that are relevant to EPA decision-making, such as information from private sector and NGO partnerships, initiatives led by NGOs to develop global standards, and newer consortia of private companies, NGOs, and universities (for example, The Sustainability Consortium).

• Gaining valuable experience in applying sustainability tools and methods. Many private companies and NGOs have taken the lead in applying sustainability tools, including LCA, accounting methods for calculating the social cost of carbon, natural-capital valuation, and assessment of tradeoffs at the climate–water–energy–food nexus of issues.

• Initiating a federal interagency process to develop and apply tools, such as LCA, in a sustainability context. EPA is a lead agency in many interagency forums, including science and technology for environment, natural resources, and sustainability in which science and technology priorities, budgets, and programs are assessed and aligned with policy priorities. The process could include assessments of the best practices, research and analytic impediments, data gaps, case studies of federal agencies’ tools applications, and approaches that would enable the best use of sustainability tools.

• Applying transregional and global scenarios and trends analysis to problem-solving that is within EPA’s specific jurisdiction. The interconnected nature of the global economy requires greater EPA understanding of such scenarios and trends to inform its decision-making on such issues as climate change, recycling opportunities, and green-product development.

• Leveraging existing EPA capabilities to achieve larger-scale outcomes that would greatly exceed the effects of following traditional decision-making approaches. For example, convening the important producers along an entire value chain of the energy market (rather than focusing on emission from the utility sector alone) provides EPA and the public that it serves with the opportunity to use many more tools and options and generate more effective decisions. The cost effectiveness of such an approach is likely to be higher than if single source categories are focused on in isolation.

Expanding EPA’s convening role and capabilities would enable the agency to create new decision-making platforms to achieve critical objectives by applying innovative tools and approaches.

Catalyzing Innovation in Decision-Making

An examination of EPA’s programs yields many instances of innovation in decision-making frameworks and their applications. EPA made early use of economic-incentive approaches that later found application in the 1990 Clean Air Act Amendments, which codified the use of emission offsets to reduce acid-deposition precursors, such as nitrogen oxides and sulfur oxides, at a small fraction of the previously estimated cost. Similarly, support for pollution-prevention initiatives led a number of companies to examine their business processes to identify less expensive, environmentally effective solutions in their operations.

The committee has identified various assessment approaches that could be used to identify new opportunities for incorporating sustainability concepts into EPA’s decision-making.

Developing a Cradle-to-Cradle Approach to Assessing Materials Management 4

Many of today’s most important products—appliances, automobiles, computers, electricity, food, mobile telephones, and synthetic materials—are made and consumed without sufficient understanding of their full life-cycle effects or recognition of their full social costs. 5 As a result, huge volumes of usable materials go unrecovered and unused because current policies (such as water subsidies) encourage over-consumption or make materials recovery or resource efficiencies uneconomical for many products. Given the span of its responsibilities, EPA is well positioned to examine materials management in various business sectors and develop assessment practices that encourage the application of life-cycle approaches and identification of opportunities for innovative design and development of a materials recovery–reuse infrastructure in multiple market sectors.

Evaluating Pollution-Related Risks and Risk-Reduction Opportunities Throughout an Entire Value Chain and Not Only for Individual Sources

In EPA’s history, there is precedent for this type of thinking, but it has had little application. A major application of this approach occurred in the aftermath of the 1990 Clean Air Act Amendments. EPA was charged with the responsibility to promulgate regulations by 1995 that would result in cleaner fuels by reducing volatile organic compounds and other air toxics. EPA quickly concluded that such a mandate could not be successfully achieved by focusing on petroleum refiners alone, so it convened a process through which many of the major participants in the fuels value chain contributed scientific data, modeling scenarios, and test results of varied fuel compositions and emission performance of various families of fuels and vehicles. The participants included refining companies, chemical companies that supplied fuel

4 For a more extensive discussion of the cradle-to-cradle concept and its applications, see McDonough and Braungart 2002.

5 See, for example, NRC 2010.

components, major automotive manufacturers, engine manufacturers, agricultural interests, state and local government officials, and environmental organizations. The result of their deliberations was encapsulated in a formal agreement among most of the participants. EPA converted the accord into a formal rulemaking proposal subject to public notice and comment before a final rule promulgation that was achieved in advance of the statutory deadline. 6

There are substantial environmental sustainability challenges along a number of important value chains. Examples include reducing packaging in consumer products, such as clothing, electronics, and food; decreasing the carbon and water footprints of the manufacturing and service sectors; and reducing the carbon intensity and fine-particle emission of the nation’s energy-production system.

Simultaneously, new value chains are being constructed in ways that have major implications for EPA. The automobile industry, for example, is in the formative stages of a historic transformation away from primary reliance on the internal-combustion engine powered by hydrocarbon-based fuels toward more innovative propulsion by electricity, hydrogen, and other alternatives. In the midst of this transformation, EPA’s traditional risk-assessment framework—focused on tailpipe and other evaporative emission from existing fuel combinations—will be less relevant or even rendered obsolete.

EPA should examine various sustainability challenges in collaboration with outside organizations and seek to evaluate risks and optimize decision-making and environmental performance for a number of value chains, both existing and in formation. (Recommendation 7e)

Constructing a Research and Evaluation Template for Sustainable Cities

The historic demographic transition that is under way has already meant that a majority of the US and world population lives in cities. That trend is expected to continue (Portney 2003; Pijawka and Gromulat 2012; Pearson et al. 2014). Providing economic opportunities, infrastructure, and services to the growing urban population poses one of the major challenges to current and future generations. Leading companies, universities, and other thought leaders have initiated plans and programs to prepare for this future and advance the concept of sustainable cities in connection with varied issues, such as commercial and residential buildings; congestion management; health-care delivery systems; optimization of energy, water, and food delivery systems; infrastructure design and investment; and smart technologies

EPA has a number of important responsibilities and leverage points to advance the development of more sustainable cities. They include air and water-quality permitting; remediation practices and requirements; and use of natural systems in addition to human-made infrastructures for combined sewer overflow and storm-water and storm-surge management.

In developing a research and evaluation template for sustainable cities, EPA should explore the application of a broader set of sustainability tools. (Recommendation 7f)

Examples include building on the best practices of cities, such as New York, that have developed widely accepted initiatives for making the energy performance of commercial buildings transparent to architects, engineers, realty companies, building-maintenance and energy-service firms and tenants and creating opportunities for their collaboration to achieve a more efficient use of energy. New York is also a leader in developing plans for mitigation of natural hazards that EPA, in its various authorities, will have a role in reviewing and implementing. Some federal agencies, such as the Department of Defense and Department of Energy, have large land holdings that include small urban centers; these are being man-

6 For example, the regulatory negotiations on Reformulated Gasoline under Title II (Section 211) of the 1990 Clean Air Act Amendments.

aged with consideration of sustainability factors as part of the planning process and may provide insights for EPA and other institutions.

MOTIVATIONS FOR LEADERSHIP BY BUSINESS, NONGOVERNMENTAL ORGANIZATIONS, AND GOVERNMENT

As the landscape of the global economy continues to evolve and global megatrends present major new risks and opportunities, institutions in the public, private, and NGO sectors are re-examining their roles and capabilities. For business, these developments are leading to new business models, accounting methods, and accountability processes that recognize the materiality of risks and effects, innovation and market-access opportunities, and a necessity to align value-chain relationships to achieve greater efficiencies and performance improvements.

For NGOs that are reviewing the same macrodevelopments as business, a perceptible shift has evolved in the approach to working with government and business. Concerned about the large-scale effects of climate change, scarcities of natural resources and food, loss of biodiversity, and other planetary-scale effects, many of the leading NGOs have entered into more collaborative relationships with leading global companies. This process of dialogue has reached the point where they are developing common solutions and advocating similar agendas for resolving global, regional, national, and local issues. Beyond the collaboration with business, some NGOs have taken initiatives on various topics, such as developing global standards that would encourage the application of best practices to water management and water-quality protection. NGOs are also increasingly engaged with investors and the financial sector to alter methods of assessing effective governance, expanding transparency, and reconsidering valuations of capital and risk. 7

RELATIONSHIP OF RISK-ASSESSMENT–RISK-MANAGEMENT DECISION-MAKING TO SUSTAINABILITY TOOLS AND APPROACHES

EPA has decades of experience in applying risk-assessment and risk-management decision tools to a variety of public-health and environmental challenges. As already noted in the present report, the agency has formalized the use of the tools in a formal decision-making framework that it periodically updates (EPA 2014d). In addition, the committee that prepared the Green Book (NRC 2011a) observed that its proposed Sustainability Assessment and Management (SAM) approach can include each of the basic elements of the risk-assessment and risk-management paradigms (see Figure 7-1 ). 8 The Green Book recommended that EPA include risk assessment as a tool, when appropriate, as a key input into sustainability decision-making.

Risk-assessment and risk-management approaches are dynamic and are continually informed by new scientific information. A similar characteristic is present in sustainability tools and methods, such as LCA, benefit–cost analysis, megatrend analysis, and data analytics.

As discussed in Chapter 3 , risk assessment can be used to inform considerations of sustainability concepts by estimating whether and to what extent public health and the environment will be affected if an action is taken. The present committee’s evaluation of how best to integrate risk assessment and other sustainability tools and methods is based on a consideration of four major factors:

7 For an examination of recent coalitions between businesses and NGOs, see Grayson and Nelson 2013.

8 In some cases, such as a short timeframe for a decision, the formal four-step risk assessment will not help to discriminate among potential decision options in a sustainability framework. For a decision process in which four-step risk assessment is included, the sustainability framework can be viewed as representing the risk paradigm expanded and adapted to address sustainability goals. See Chapter 5 of NRC 2011a.

FIGURE 7-1 Correspondence between the components of the sustainability and management approach and the risk-assessment and risk-management frameworks used by EPA. Source: NRC 2011a.

• Planning and scoping that address all major sources of a problem. This would include not only the probabilistic evaluation of health and environmental effects associated with a specific pollutant or pollutant source (the most frequent application of risk assessment in EPA) but an examination of the economic activities in which the pollution originated (for example, the pollution-generating characteristics associated with the source of raw materials burned in a factory).

• Expanding the scope of problem formulation to include not only point and area sources that directly emit or contribute to pollution generation but energy and material flows throughout a value chain of activities that ultimately generate pollution further downstream. Transitioning from a “pollution source” to a “value chain” unit of problem formulation and analysis will provide EPA with important insights into how pollution is created and distributed.

• Many such innovations have emerged through the application of information technology that enables cost-effective analysis of individual problems and their linkage to interconnected systems of problems (for example, climate–water–food challenges) or the application of “traceability” methods that enable the tracking and tracing of pollutants or material flows among multiple participants in the economy (such as suppliers, manufacturers, distributors, and consumers). The application of those and other innovations has led to important insights for decision-makers in public, private, and nongovernment institutions and should be integrated into EPA’s decision-making frameworks.

• Using risk assessment and other sustainability tools that are “fit for purpose”. That term refers to the utility of an analytic tool that is best suited and adapted to support decision-making (EPA 2014d, p. xii). It applies equally to traditional risk assessment and sustainability methods.

EPA decision-makers need an expanded array of available tools to understand relevant trends emerging from the changing dynamics of the economy (locally, regionally, nationally, and globally). By integrating sustainability tools with an existing suite of risk-assessment methods, EPA would be better informed about the changing nature of risks that it is responsible for reducing and would have a system-level view of key interrelationships in economic–environmental–societal spheres of activities.

The committee agrees with the Green Book recommendation that EPA include risk assessment as a tool, when appropriate, as a key input into sustainability decision-making.

EPA should develop an integrated risk-assessment–sustainability analytic approach for decision-makers that can be applied as part of the SAM process throughout the agency’s programs. Such an approach should

• Identify the appropriate tools and methods for a variety of specific decision-making issues and scenarios.
• Articulate how particular sets of risk–sustainability tools and methods can be applied to specific sets of challenges within the scope of EPA’s decision-making responsibilities, such as regulatory, technical support and guidance, cross-media and cross-business sector, and international.
• Evaluate how EPA can apply risk–sustainability tools to specific value chains.
• Conduct a selected number of postdecision evaluations to determine the efficacy and effects of integrated risk–sustainability methods, assess how and whether they would have changed the outcomes achieved, identify risk tradeoffs, and identify new opportunities for solving sustainability challenges. (Recommendation 7g)

KEY CONCLUSIONS AND RECOMMENDATIONS

Conclusion 7.1: EPA’s various decision-making frameworks for the application of analytic tools and approaches function in parallel and are in various states of transition or development. Integrat-

ing the frameworks on the basis of sustainability concepts would enhance EPA’s decision-making to match the degree and scale of current and future challenges.

Recommendation 7.1: As EPA continues to evaluate and update its current decision-making tools and frameworks, it should strive to use sustainability concepts as an integrating principle for its strategic plan and implementation of its program responsibilities. The committee urges EPA to continue in its efforts to adopt or adapt the sustainability framework recommended in the Green Book (NRC 2011a). (See Recommendation 7a)

Conclusion 7.2: The application of sustainability tools and approaches to EPA’s day-to-day operations on a cross-program basis would enhance the agency’s execution of its existing activities.

Recommendation 7.2: EPA should embed the application of sustainability tools and approaches in its major activities in a manner that is consistent with its existing statutory authorities and programmatic experience:

• Evaluating existing regulatory policies for public-health and environmental protection and approaches to emerging challenges.
• Extending EPA’s role in data management and synthesis to aid the investment community, to fill information gaps in the commercial economy, and to monitor and identify problems and trends, many of which emerge in a nonregulatory context.
• Serving as a convener for collaboration in system-level solutions to leverage knowledge and problem-solving beyond the capability of any single institution or group, to foster cross-business sector collaboration and public–private partnerships, and to design system-level evaluation approaches throughout specific value chains.
• Developing approaches for cradle-to-cradle assessment of materials management, for evaluation of pollution-related risks and risk-reduction opportunities throughout an entire value chain and not only to individual sources or sectors, for integrated assessments of multiple individual risks that apply to cities, and for incorporation of resilience approaches. (See Recommendations 7b-7f)

Conclusion 7.3: Applying an expanded array of risk assessment and other sustainability tools and approaches would enhance EPA decision-makers’ understanding of the changing dynamics of the economy and risks associated with the changes.

Recommendation 7.3: EPA should develop an integrated sustainability and risk-assessment–risk-management approach for decision-makers. Such an integrated approach should include an updated set of appropriate tools and methods for specific issues and scenarios, examination of how EPA can apply risk assessment and other sustainability tools throughout specific value chains, and selected postdecision evaluations to identify lessons learned and new opportunities to inform future decision-making. (See Recommendation 7g)

In its current strategic plan, the U.S. Environmental Protection Agency (EPA) describes a cross-agency strategy to advance sustainable environmental outcomes and optimize economic and social outcomes through Agency decisions and actions. Sustainability has evolved from an aspiration to a growing body of practices. The evolution includes a transition from the development of broad goals toward the implementation of specific policies and programs for achieving them and the use of indicators and metrics for measuring progress. Without losing focus on implementing its existing regulatory mandates, EPA's incorporation of sustainability considerations into its decision-making about potential environmental, social, and economic outcomes involves shifting from a focus on specific pollutants in an environmental medium (air, water, or land) to a broader assessment of interactions among human, natural, and manufactured systems. EPA has indicated that it will need to consider the use of a variety of analytic tools and approaches to assess the potential sustainability-related effects of its decisions and actions in response to complex environmental challenges.

Sustainability Concepts in Decision-Making: Tools and Approaches for the U.S. Environmental Protection Agency examines scientific tools and approaches for incorporating sustainability concepts into assessments used to support EPA decision making. Using specific case studies, this report considers the application of analytic and scientific tools, methods, and approaches presented in the 2011 NRC report Sustainability and the U.S. EPA . This report examines both currently available and emerging tools, methods, and approaches to find those most appropriate for assessing and/or evaluating potential economic, social and environmental outcomes within an EPA decision context. Sustainability Concepts in Decision Making also discusses data needs and post-decision evaluation of outcomes on dimensions of sustainability. A broad array of sustainability tools and approaches are suitable for assessing potential environmental, social, and economic outcomes in EPA's decision-making context. The recommendations of this report will assist the agency to optimize environmental, social, and economic outcomes in EPA decisions.

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The challenges posed by our environmental problems may seem overwhelming. The effects of these problems have shown up at regional and global scales, and the prospect of overcoming the differences between countries, between factions within countries, and even between individuals seems insurmountable at times.

However, the world has solved global environmental problems before, like ozone depletion and acid rain. We tackled them by developing an understanding of the scope of the problem and coming together to develop sets of rules that eliminate the sources of the problem. We have what it takes to do it again! 

Consider how each cause contributed the challenges of global warming, pollution, water scarcity, and biodiversity loss.

Let's begin by looking deeper into the underlying causes

The major environmental problems that face our planet did not appear overnight. They are the result of several forces working together: our technological innovation, our consumptive habits, and our pursuit of wealth, along with the exponential rise in the human population over the last 200 years. 

These forces have transformed the face of Earth to create economic opportunities and increase the standard of living for many people throughout the world. As time has passed, however, scientists have discovered that if population growth and the ravenous consumption of the planet’s natural resources continue unabated, they would pose serious threats to the survival of our species, as well as to the survival of millions of others..

We’re on this planet and in this fight together. Every person needs to contribute to the solution.

Next, let's understand how we can help create solutions.

It’s easy to fall into the trap of inaction. Perhaps Earth’s environmental problems don’t seem so bad to you right now. Conversely, perhaps they seem so overwhelming and complex that it’s hard to know where to begin. No one argues that Earth’s environmental problems are simple ones to solve, but there are several regulatory and policy approaches we can use to better take the environment into account.

Learn about some of the big solutions that underpin the environmental steps we need to take to slow and halt greenhouse gas emissions, enact better pollution and species protection laws, and conserve the water resources we all depend on.

It is a big to-do list, but we can use science, creativity, and sheer willpower to once again get things done. 

Take Action

The issues facing Earth are big, but imagine the difference we could make if we all took steps to address them. Learn about the small but important changes you can make in your daily life to reduce your greenhouse gas emissions, save water, help wildlife, and limit pollution.

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1. Spread the word

Encourage your friends, family and co-workers to reduce their carbon pollution. Join a global movement like  Count Us In, which aims to inspire 1 billion people to take practical steps and challenge their leaders to act more boldly on climate. Organizers of the platform say that if 1 billion people took action, they could reduce as much as 20 per cent of global carbon emissions. Or you could sign up to the UN’s  #ActNow campaign on climate change and sustainability and add your voice to this critical global debate.

2. Keep up the political pressure

Lobby local politicians and businesses to support efforts to cut emissions and reduce carbon pollution.  #ActNow Speak Up  has sections on political pressure and corporate action - and Count Us In also has  some handy tips  for how to do this. Pick an environmental issue you care about, decide on a specific request for change and then try to arrange a meeting with your local representative. It might seem intimidating but your voice deserves to be heard. If humanity is to succeed in tackling the climate emergency, politicians must be part of the solution. It’s up to all of us to keep up with the pressure. 

3. Transform your transport

Transport accounts for around a quarter of all greenhouse gas emissions and across the world, many governments are implementing policies to decarbonize travel. You can get a head start: leave your car at home and walk or cycle whenever possible. If the distances are too great, choose public transport, preferably electric options. If you must drive, offer to carpool with others so that fewer cars are on the road. Get ahead of the curve and buy an electric car. Reduce the number of long-haul flights you take. 

4. Rein in your power use

If you can, switch to a zero-carbon or renewable energy provider. Install solar panels on your roof. Be more efficient: turn your heating down a degree or two, if possible. Switch off appliances and lights when you are not using them and better yet buy the most efficient products in the first place (hint: this will save you money!). Insulate your loft or roof: you’ll be warmer in the winter, cooler in the summer and save some money too. 

5. Tweak your diet

Eat more plant-based meals – your body and the planet will thank you. Today, around 60 per cent of the world’s agricultural land is used for livestock grazing and people in many countries are consuming more animal-sourced food than is healthy. Plant-rich diets can help reduce chronic illnesses, such as heart disease, stroke, diabetes and cancer.

The climate emergency demands action from all of us. We need to get to net zero greenhouse gas emissions by 2050 and everyone has a role to play.

6. Shop local and buy sustainable

To reduce your food’s carbon footprint, buy local and seasonal foods. You’ll be helping small businesses and farms in your area and reducing fossil fuel emissions associated with transport and cold chain storage. Sustainable agriculture uses up to 56 per cent less energy, creates 64 per cent fewer emissions and allows for greater levels of biodiversity than conventional farming. Go one step further and try growing your own fruit, vegetables and herbs. You can plant them in a garden, on a balcony or even on a window sill. Set up a community garden in your neighbourhood to get others involved. 

7. Don’t waste food

One-third of all food produced is either lost or wasted. According to UNEP’s  Food Waste Index Report 2021 , people globally waste 1 billion tonnes of food each year, which accounts for around 8-10 per cent of global greenhouse gas emissions. Avoid waste by only buying what you need. Take advantage of every edible part of the foods you purchase. Measure portion sizes of rice and other staples before cooking them, store food correctly (use your freezer if you have one), be creative with leftovers, share extras with your friends and neighbours and contribute to a local food-sharing scheme. Make compost out of inedible remnants and use it to fertilize your garden. Composting is one of the best options for managing organic waste while also reducing environmental impacts.

8. Dress (climate) smart

The fashion industry accounts for 8-10 per cent of global carbon emissions – more than all international flights and maritime shipping combined – and ‘fast fashion’ has created a throwaway culture that sees clothes quickly end up in landfills. But we can change this. Buy fewer new clothes and wear them longer. Seek out sustainable labels and use rental services for special occasions rather than buying new items that will only be worn once. Recycle pre-loved clothes and repair when necessary.

9. Plant trees  

Every year approximately 12 million hectares of forest are destroyed and this deforestation, together with agriculture and other land use changes, is responsible for roughly 25 per cent of global greenhouse gas emissions. We can all play a part in reversing this trend by planting trees, either individually or as part of a collective. For example, the Plant-for-the-Planet initiative allows people to sponsor tree-planting around the world.

Check out this UNEP guide to see what else you can do as part of the UN Decade on Ecosystem Restoration , a global drive to halt the degradation of land and oceans, protect biodiversity, and rebuild ecosystems. 

10. Focus on planet-friendly investments

Individuals can also spur change through their savings and investments by choosing financial institutions that do not invest in carbon-polluting industries. #ActNow Speak Up  has a section on money and so does  Count Us In . This sends a clear signal to the market and already many financial institutions are offering more ethical investments, allowing you to use your money to support causes you believe in and avoid those you don’t. You can ask your financial institution about their responsible banking policies and find out how they rank in independent research. 

UNEP is at the front in support of the Paris Agreement goal of keeping the global temperature rise well below 2°C, and aiming - to be safe - for 1.5°C, compared to pre-industrial levels. To do this, UNEP has developed a Six-Sector Solution . The Six Sector Solution is a roadmap to reducing emissions across sectors in line with the Paris Agreement commitments and in pursuit of climate stability. The six sectors identified are Energy; Industry; Agriculture & Food; Forests & Land Use; Transport; and Buildings & Cities.

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Further Resources

• 7 climate action highlights to remember before COP26
• Climate Action Note - data you need to know
• Emissions Gap Report 2021
• Food Waste Index 2021
• Act Now: the UN campaign for individual action
• Count Us In
• Food Loss and Waste Website

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• DOI: 10.1007/BF01868382
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Environmental problem-solving: Psychosocial factors

• Alan S. Miller
• Published 1 November 1982
• Environmental Science, Psychology, Education
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Irrational processes in man‐environment interactions: implications for environmental studies, professional competence in environmental management, conceptual change and environmental cognition, psychosocial origins of conflict over pest control strategies, technological thinking: its impact on environmental management, tunnel vision in environmental management, integrating perspectives in environmental management, who are tomorrow's foresters and what do they want a sociologist looks at two forestry schools, management of environment in developing countries, wetland functions and values: descriptive approach to visualizing and assessing wetland systems, 11 references, conceptual matching models and interactional research in education, environmental planning and management: the need for an integrative perspective, field dependence and interpersonal behavior., specialists and air pollution : occupations and preoccupations, environmental problem-solving and land-use management: a proposed structure for australia, behavior in the complex environment., a developmental study of the relationship between conceptual, ego, and moral development., moral reasoning of young adults: political-social behavior, family background, and personality correlates., human information processing, information and complexity: the conceptualisation of air pollution by specialist groups., related papers.

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RESEARCH DESIGN AND METHODS

Conclusions, acknowledgments, self-efficacy, problem solving, and social-environmental support are associated with diabetes self-management behaviors.

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Diane K. King , Russell E. Glasgow , Deborah J. Toobert , Lisa A. Strycker , Paul A. Estabrooks , Diego Osuna , Andrew J. Faber; Self-Efficacy, Problem Solving, and Social-Environmental Support Are Associated With Diabetes Self-Management Behaviors. Diabetes Care 1 April 2010; 33 (4): 751–753. https://doi.org/10.2337/dc09-1746

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To evaluate associations between psychosocial and social-environmental variables and diabetes self-management, and diabetes control.

Baseline data from a type 2 diabetes self-management randomized trial with 463 adults having elevated BMI ( M = 34.8 kg/m 2 ) were used to investigate relations among demographic, psychosocial, and social-environmental variables; dietary, exercise, and medication-taking behaviors; and biologic outcomes.

Self-efficacy, problem solving, and social-environmental support were independently associated with diet and exercise, increasing the variance accounted for by 23 and 19%, respectively. Only diet contributed to explained variance in BMI (β = −0.17, P = 0.0003) and self-rated health status (β = 0.25, P < 0.0001); and only medication-taking behaviors contributed to lipid ratio (total–to–HDL) (β = −0.20, P = 0.0001) and A1C (β = −0.21, P < 0.0001).

Interventions should focus on enhancing self-efficacy, problem solving, and social-environmental support to improve self-management of diabetes.

Diabetes management requires coordination between the patient and the primary care team. Given the lifestyle changes required for self-management success, patient, social, and environmental factors, including health care ( 1 ) and community support ( 2 ), are increasingly recognized as important. Understanding relations among demographic, psychosocial, and social-environmental variables, and multiple health risk behaviors is critical to developing interventions that will sustain health behavior changes.

Baseline data were collected as part of a patient randomized trial to evaluate the impact of an interactive, multimedia diabetes self-management program relative to “enhanced” usual care (Glasgow RE, Christiansen S, Kurz D, King D, Woolley T, Faber A, Estabrooks P, Strycker L, Toobert D, Dickinson J, unpublished data). Recruitment details are also described elsewhere ( 3 ). Briefly, participants between 25 and 75 years old were recruited from five Kaiser Permanente Colorado primary care clinics in the Denver metropolitan area. Eligibility criteria included: diagnosis of type 2 diabetes for at least 1 year, BMI of 25 kg/m 2 or greater, at least one other risk factor for heart disease (i.e., hypertension, LDL >100 mg/dl or on a lipid-lowering agent, A1C >7%, or cigarette smoking), and willingness to participate in a computer-assisted diabetes self-management study. Data were collected during a recruitment call and baseline study visit. Self-management behaviors were measured using self-report surveys. Fat intake was measured by the National Cancer Institute's Percent Energy from Fat (PFAT) screener ( 4 ). Eating behaviors, such as consumption of sugary beverages and fast food, were assessed with the Starting the Conversation scale ( 5 ). Physical activity was assessed by the Community Healthy Activities Model Program for Seniors (CHAMPS) questionnaire ( 6 ), calculated as total weekly caloric expenditure.

Adherence to diabetes, blood pressure, and cholesterol medication regimens was assessed by the medication-taking items of the Hill-Bone Compliance Scale ( 7 ). Biologic outcomes included the UK Prospective Diabetes Study (UKPDS) 10-year heart disease risk score ( 8 ). BMI was calculated from electronic medical records and measurement during the baseline visit. Hemoglobin A1C and lipids were collected at Kaiser Permanente Colorado clinics. General health status was measured using the visual analog scale from the EuroQol instrument ( 9 ).

Self-efficacy was assessed with Lorig's 8-item Diabetes Self-Efficacy Scale ( 10 ). Six additional, similarly constructed self-efficacy items recommended by Bandura ( 11 ) were added to measure confidence regarding taking diabetes medications, exercising, and limiting high-fat foods. Self-efficacy subscales were calculated for healthy eating, physical activity, and medication-taking behaviors. Problem-solving skill was assessed with the Positive Transfer of Past Experience from the Diabetes Problem-Solving Scale of Hill-Briggs ( 12 ).

The social and environmental context in which patient self-management takes place was assessed at the health care and community resource levels. Support from the health care team was measured using 11 items from the Patient Assessment of Chronic Illness Care (PACIC) ( 13 ) survey; support from the broader community was assessed with nine items on the use of healthy eating and physical activity resources from the Chronic Illness Resources Survey (CIRS) ( 14 ).

Hierarchical multiple regression analyses examined the extent to which psychosocial factors accounted for variance in self-management variables. Demographic variables that were significantly correlated with self-management variables were entered in step 1 (sex, ethnicity, age) and psychosocial factors were entered in step 2. Additional hierarchical multiple regression analyses were conducted to determine the extent to which self-management variables accounted for variances in clinical indicators.

Participants averaged 60 years of age, had elevated BMI ( M = 34.8 kg/m 2 ), and had a mean A1C of 8.1%. Fifty percent of participants were female and 21% were Latino. About 20% of participants had less than a high-school education, and 44% reported an annual family income of less than $50,000. Self-efficacy scores revealed moderate confidence and large variability. Participants reported high levels of medication adherence, moderate amounts and high variability of physical activity, high-fat intake, and low fruit and vegetable intake. Demographic factors were not associated with either psychosocial variables or self-management behaviors in bivariate analyses.

Regression results revealed that self-efficacy, problem-solving, and social-ecological factors increased the variance accounted for in all self-management variables ( Table 1 ), and self-efficacy and problem-solving factors were independently associated with three self-management outcomes. Healthy eating patterns and physical activity were especially related to behavioral- specific self-efficacy and social-environmental support variables, increasing the percentage of the variance accounted for by 23 and 19%, respectively. Community support scores were independently associated with diet and physical activity self-management variables, but not medication adherence. Support from the health care team was not associated with behavioral or clinical outcomes.

Associations between psychosocial and social-environmental factors and diabetes self-management and diabetes control

NCI, National Cancer Institute; PA, physical activity.

Self-management variables contributed 4–6% incremental variance beyond that explained by demographic factors for four of the five clinical indicators. The specific self-management variables related to clinical indicators differed across risk indicators. Diet and physical activity measures were related to BMI, with the healthy eating measure especially strong for BMI and general health status. Medication adherence was independently related to lipid ratio (total–to–HDL) and A1C.

Problem solving and behavior-specific self-efficacy were associated with self-management behaviors. Self-efficacy was strongly related to healthy eating and calories expended in physical activity, as was behavior-specific support from family, friends, and community resources. Healthy eating and physical activity measures related to BMI, healthy eating related to self-reported general health, and medication adherence related to lipid ratio and A1C.

We acknowledge this study's inability to fully explore other known correlates of self-care, such as the quality of the physician/patient relationship, yet the findings that self-efficacy, problem solving, and social-environmental support are related to self-management while support from the health care team is not underscore the importance of social and community environments in promoting healthy eating, physical activity, and even medication-taking behaviors.

Analyses were limited to baseline data and the use of self-report measures of self-management behaviors, and the study was limited to a fairly educated sample in one health care organization. Nevertheless, the results demonstrated these relationships after controlling for a variety of potential confounders with a large, multi-ethnic sample and using validated measures that were driven by theory. These findings suggest the need to design diabetes self-care interventions that enhance problem-solving skills (e.g., activity logs to identify problems), increase self-efficacy (e.g., skill-building programs), and connect patients to community resources to support healthy eating and exercise.

The costs of publication of this article were defrayed in part by the payment of page charges. This article must therefore be hereby marked “advertisement” in accordance with 18 U.S.C. Section 1734 solely to indicate this fact.

This research was supported by grant 2 R01 DK035524-21 from the National Institute of Diabetes and Digestive and Kidney Diseases.

No potential conflicts of interest relevant to this article were reported.

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What is Problem Solving? (Steps, Techniques, Examples)

By Status.net Editorial Team on May 7, 2023 — 5 minutes to read

What Is Problem Solving?

Definition and importance.

Problem solving is the process of finding solutions to obstacles or challenges you encounter in your life or work. It is a crucial skill that allows you to tackle complex situations, adapt to changes, and overcome difficulties with ease. Mastering this ability will contribute to both your personal and professional growth, leading to more successful outcomes and better decision-making.

Problem-Solving Steps

The problem-solving process typically includes the following steps:

• Identify the issue : Recognize the problem that needs to be solved.
• Analyze the situation : Examine the issue in depth, gather all relevant information, and consider any limitations or constraints that may be present.
• Generate potential solutions : Brainstorm a list of possible solutions to the issue, without immediately judging or evaluating them.
• Evaluate options : Weigh the pros and cons of each potential solution, considering factors such as feasibility, effectiveness, and potential risks.
• Select the best solution : Choose the option that best addresses the problem and aligns with your objectives.
• Implement the solution : Put the selected solution into action and monitor the results to ensure it resolves the issue.
• Review and learn : Reflect on the problem-solving process, identify any improvements or adjustments that can be made, and apply these learnings to future situations.

Defining the Problem

To start tackling a problem, first, identify and understand it. Analyzing the issue thoroughly helps to clarify its scope and nature. Ask questions to gather information and consider the problem from various angles. Some strategies to define the problem include:

• Brainstorming with others
• Asking the 5 Ws and 1 H (Who, What, When, Where, Why, and How)
• Analyzing cause and effect
• Creating a problem statement

Generating Solutions

Once the problem is clearly understood, brainstorm possible solutions. Think creatively and keep an open mind, as well as considering lessons from past experiences. Consider:

• Creating a list of potential ideas to solve the problem
• Grouping and categorizing similar solutions
• Prioritizing potential solutions based on feasibility, cost, and resources required
• Involving others to share diverse opinions and inputs

Evaluating and Selecting Solutions

Evaluate each potential solution, weighing its pros and cons. To facilitate decision-making, use techniques such as:

• SWOT analysis (Strengths, Weaknesses, Opportunities, Threats)
• Decision-making matrices
• Pros and cons lists
• Risk assessments

After evaluating, choose the most suitable solution based on effectiveness, cost, and time constraints.

Implementing and Monitoring the Solution

Implement the chosen solution and monitor its progress. Key actions include:

• Communicating the solution to relevant parties
• Setting timelines and milestones
• Assigning tasks and responsibilities
• Monitoring the solution and making adjustments as necessary
• Evaluating the effectiveness of the solution after implementation

Utilize feedback from stakeholders and consider potential improvements. Remember that problem-solving is an ongoing process that can always be refined and enhanced.

Problem-Solving Techniques

During each step, you may find it helpful to utilize various problem-solving techniques, such as:

• Brainstorming : A free-flowing, open-minded session where ideas are generated and listed without judgment, to encourage creativity and innovative thinking.
• Root cause analysis : A method that explores the underlying causes of a problem to find the most effective solution rather than addressing superficial symptoms.
• SWOT analysis : A tool used to evaluate the strengths, weaknesses, opportunities, and threats related to a problem or decision, providing a comprehensive view of the situation.
• Mind mapping : A visual technique that uses diagrams to organize and connect ideas, helping to identify patterns, relationships, and possible solutions.

Brainstorming

When facing a problem, start by conducting a brainstorming session. Gather your team and encourage an open discussion where everyone contributes ideas, no matter how outlandish they may seem. This helps you:

• Generate a diverse range of solutions
• Encourage all team members to participate
• Foster creative thinking

When brainstorming, remember to:

• Reserve judgment until the session is over
• Encourage wild ideas
• Combine and improve upon ideas

Root Cause Analysis

For effective problem-solving, identifying the root cause of the issue at hand is crucial. Try these methods:

• 5 Whys : Ask “why” five times to get to the underlying cause.
• Fishbone Diagram : Create a diagram representing the problem and break it down into categories of potential causes.
• Pareto Analysis : Determine the few most significant causes underlying the majority of problems.

SWOT Analysis

SWOT analysis helps you examine the Strengths, Weaknesses, Opportunities, and Threats related to your problem. To perform a SWOT analysis:

• List your problem’s strengths, such as relevant resources or strong partnerships.
• Identify its weaknesses, such as knowledge gaps or limited resources.
• Explore opportunities, like trends or new technologies, that could help solve the problem.
• Recognize potential threats, like competition or regulatory barriers.

SWOT analysis aids in understanding the internal and external factors affecting the problem, which can help guide your solution.

Mind Mapping

A mind map is a visual representation of your problem and potential solutions. It enables you to organize information in a structured and intuitive manner. To create a mind map:

• Write the problem in the center of a blank page.
• Draw branches from the central problem to related sub-problems or contributing factors.
• Add more branches to represent potential solutions or further ideas.

Mind mapping allows you to visually see connections between ideas and promotes creativity in problem-solving.

Examples of Problem Solving in Various Contexts

In the business world, you might encounter problems related to finances, operations, or communication. Applying problem-solving skills in these situations could look like:

• Identifying areas of improvement in your company’s financial performance and implementing cost-saving measures
• Resolving internal conflicts among team members by listening and understanding different perspectives, then proposing and negotiating solutions
• Streamlining a process for better productivity by removing redundancies, automating tasks, or re-allocating resources

In educational contexts, problem-solving can be seen in various aspects, such as:

• Addressing a gap in students’ understanding by employing diverse teaching methods to cater to different learning styles
• Developing a strategy for successful time management to balance academic responsibilities and extracurricular activities
• Seeking resources and support to provide equal opportunities for learners with special needs or disabilities

Everyday life is full of challenges that require problem-solving skills. Some examples include:

• Overcoming a personal obstacle, such as improving your fitness level, by establishing achievable goals, measuring progress, and adjusting your approach accordingly
• Navigating a new environment or city by researching your surroundings, asking for directions, or using technology like GPS to guide you
• Dealing with a sudden change, like a change in your work schedule, by assessing the situation, identifying potential impacts, and adapting your plans to accommodate the change.
• How to Resolve Employee Conflict at Work [Steps, Tips, Examples]
• How to Write Inspiring Core Values? 5 Steps with Examples
• 30 Employee Feedback Examples (Positive & Negative)

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Q&A: What past environmental success can teach us about solving the climate crisis

by Paige Colley, Massachusetts Institute of Technology

Susan Solomon, MIT professor of Earth, atmospheric, and planetary sciences (EAPS) and of chemistry, played a critical role in understanding how a class of chemicals known as chlorofluorocarbons were creating a hole in the ozone layer.

Her research was foundational to the creation of the Montreal Protocol , an international agreement established in the 1980s that phased out products releasing chlorofluorocarbons. Since then, scientists have documented signs that the ozone hole is recovering thanks to these measures.

Having witnessed this historical process first-hand, Solomon, the Lee and Geraldine Martin Professor of Environmental Studies, is aware of how people can come together to make successful environmental policy happen. Using her story, as well as other examples of success—including combating smog, getting rid of DDT, and more—Solomon draws parallels from then to now as the climate crisis comes into focus in her new book , "Solvable: How we Healed the Earth and How we can do it Again."

Solomon took a moment to talk about why she picked the stories in her book, the students who inspired her, and why we need hope and optimism now more than ever.

You have first-hand experience seeing how we've altered the Earth, as well as the process of creating international environmental policy. What prompted you to write a book about your experiences?

Lots of things, but one of the main ones is the things that I see in teaching. I have taught a class called Science, Politics and Environmental Policy for many years here at MIT. Because my emphasis is always on how we've actually fixed problems, students come away from that class feeling hopeful, like they really want to stay engaged with the problem.

It strikes me that students today have grown up in a very contentious and difficult era in which they feel like nothing ever gets done. But stuff does get done, even now. Looking at how we did things so far really helps you to see how we can do things in the future.

In the book, you use five different stories as examples of successful environmental policy, and then end talking about how we can apply these lessons to climate change. Why did you pick these five stories?

I picked some of them because I'm closer to those problems in my own professional experience, like ozone depletion and smog. I did other issues partly because I wanted to show that even in the 21st century, we've actually got some stuff done—that's the story of the Kigali Amendment to the Montreal Protocol, which is a binding international agreement on some greenhouse gases.

Another chapter is on DDT. One of the reasons I included that is because it had an enormous effect on the birth of the environmental movement in the United States. Plus, that story allows you to see how important the environmental groups can be.

Lead in gasoline and paint is the other one. I find it a very moving story because the idea that we were poisoning millions of children and not even realizing it is so very, very sad. But it's so uplifting that we did figure out the problem, and it happened partly because of the civil rights movement , that made us aware that the problem was striking minority communities much more than non-minority communities.

What surprised you the most during your research for the book?

One of the things that I didn't realize and should have, was the outsized role played by one single senator, Ed Muskie of Maine. He made pollution control his big issue and devoted incredible energy to it. He clearly had the passion and wanted to do it for many years, but until other factors helped him, he couldn't. That's where I began to understand the role of public opinion and the way in which policy is only possible when public opinion demands change.

Another thing about Muskie was the way in which his engagement with these issues demanded that science be strong. When I read what he put into congressional testimony I realized how highly he valued the science. Science alone is never enough, but it's always necessary. Over the years, science got a lot stronger, and we developed ways of evaluating what the scientific wisdom across many different studies and many different views actually is. That's what scientific assessment is all about, and it's crucial to environmental progress.

Throughout the book you argue that for environmental action to succeed, three things must be met which you call the three Ps: a threat much be personal, perceptible, and practical. Where did this idea come from?

My observations. You have to perceive the threat: In the case of the ozone hole, you could perceive it because those false-color images of the ozone loss were so easy to understand, and it was personal because few things are scarier than cancer, and a reduced ozone layer leads to too much sun, increasing skin cancers. Science plays a role in communicating what can be readily understood by the public, and that's important to them perceiving it as a serious problem.

Nowadays, we certainly perceive the reality of climate change. We also see that it's personal. People are dying because of heat waves in much larger numbers than they used to; there are horrible problems in the Boston area, for example, with flooding and sea level rise . People perceive the reality of the problem and they feel personally threatened.

The third P is practical: People have to believe that there are practical solutions. It's interesting to watch how the battle for hearts and minds has shifted. There was a time when the skeptics would just attack the whole idea that the climate was changing. Eventually, they decided 'we better accept that because people perceive it, so let's tell them that it's not caused by human activity." But it's clear enough now that human activity does play a role. So they've moved on to attacking that third P, that somehow it's not practical to have any kind of solutions. This is progress! So what about that third P?

What I tried to do in the book is to point out some of the ways in which the problem has also become eminently practical to deal with in the last 10 years, and will continue to move in that direction. We're right on the cusp of success, and we just have to keep going. People should not give in to eco despair; that's the worst thing you could do, because then nothing will happen. If we continue to move at the rate we have, we will certainly get to where we need to be.

That ties in very nicely with my next question. The book is very optimistic; what gives you hope?

I'm optimistic because I've seen so many examples of where we have succeeded, and because I see so many signs of movement right now that are going to push us in the same direction.

If we had kept conducting business as usual as we had been in the year 2000, we'd be looking at 4 degrees of future warming. Right now, I think we're looking at 3 degrees. I think we can get to 2 degrees. We have to really work on it, and we have to get going seriously in the next decade, but globally right now over 30% of our energy is from renewables. That's fantastic! Let's just keep going.

Throughout the book, you show that environmental problems won't be solved by individual actions alone, but requires policy and technology driving. What individual actions can people take to help push for those bigger changes?

A big one is choose to eat more sustainably; choose alternative transportation methods like public transportation or reducing the amount of trips that you make. Older people usually have retirement investments, you can shift them over to a social choice funds and away from index funds that end up funding companies that you might not be interested in. You can use your money to put pressure: Amazon has been under a huge amount of pressure to cut down on their plastic packaging, mainly coming from consumers. They've just announced they're not going to use those plastic pillows anymore. I think you can see lots of ways in which people really do matter, and we can matter more.

What do you hope people take away from the book?

Hope for their future and resolve to do the best they can getting engaged with it.

Provided by Massachusetts Institute of Technology

This story is republished courtesy of MIT News ( web.mit.edu/newsoffice/ ), a popular site that covers news about MIT research, innovation and teaching.

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Adolescent suicidal risk: psychological, problem solving, and environmental factors

Affiliation.

• 1 Department of Psychology, West Virginia University, Morgantown 26506-6040.
• PMID: 8475532

This study examined the life stress and problem-solving interactional model of suicide proposed by Clum, Patsiokas, and Luscomb (1979). Thirty-three hospitalized suicidal adolescents were compared with 21 adolescents hospitalized for other psychiatric problems and with 89 controls. The assessment battery was composed of psychological measures, problem-solving measures, and environmental and family measures. The discriminant analyses revealed that the suicide group could be discriminated from the psychiatric control group but not from the high school control group. Unexpectedly, life stresses did not contribute to the identification of current suicide risk. The results suggest the importance of assessing suicide risk at the time of admission to minimize any subsequent changes in the risk group.

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Climate Forward

Solving problems with susan solomon.

She played a crucial role in fixing the ozone hole, and has thoughts on climate change.

By Cara Buckley

It’s been an especially intense week, with election-related stress and political divisiveness only increasing. So, it seemed like a good time to hear from someone who has demonstrated how people can come together to fix huge problems and who has also played a crucial role in helping remediate a global threat.

In the 1980s, the groundbreaking atmospheric chemist Susan Solomon pioneered our understanding that the then-gaping hole in the ozone layer over Antarctica was caused by industrial chlorofluorocarbons, or CFCs. A damaged ozone layer increases ultraviolet radiation on Earth, harming humans, ecosystems, plants and animals. Dr. Solomon’s work underpins the Montreal Protocol, which banned 99 percent of ozone-depleting substances. Ratified by every country on the planet, the agreement is reversing the harms done to the ozone layer and is considered one of the most successful environmental treaties in history.

In her latest book, “ Solvable: How We Healed the Earth, and How We Can Do it Again ,” which was published last month, Dr. Solomon, who teaches at M.I.T., argues that we can learn from past environmental fights. Public awareness and consumer pressure can influence lawmakers, she says, and lead to positive change.

Here are excerpts from our interview, edited and condensed for clarity.

Why this book and why now?

People need to have some hope. We imagine that we never solve anything, that we have all these horrific problems and they’re just getting worse and worse and worse. I’m not going to say we don’t have any problems. We do. But it’s really important to go back and look at how much we succeeded in the past and what are the common threads of those successes.

The chemical companies’ pushback to reining in CFCs is arguably minimal compared to resistance from oil and gas companies to reducing greenhouse gas emissions. And the ozone issue didn’t have quite the same fervent political and polarized dissent from the public around it. Are these apples and apples comparisons?

No doubt, climate change is probably the heaviest lift we’ve ever attempted, just because energy is so embedded in the economy. Countries that use more fossil fuel energy are generally richer. There’s almost a linear relationship between how much you emit and how rich you are.

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• ENVIRONMENT

How do you solve a problem like glitter?

Glitter is made to be tiny and adhere loosely to surfaces, contributing to microplastic pollution. Biodegradable solutions might still get everywhere, but won't stick around forever.

It’s hard to resist a little glitz. For centuries, people have coveted and adorned themselves with precious stones, metals, and anything else that catches the light. Glitter, a collection of tiny, reflective particles originally from natural sources like mineral dust has long been an easy way to add some dazzle.  

As early as A.D. 400, for example, the Maya people used mica in paint which shimmered in the sun. Other ancients in the Americas used the same mineral to adorn gravesites and craft figurines.

Modern technology, particularly the development of synthetic plastics, has given us endless and cheap supplies of glitter. Plastic-based glitter can be seen twinkling in everything from cosmetics and candles to wrapping paper and sunscreen.

But those sparkling flecks don’t just disappear when they slough off your face or birthday card. In fact, a growing body of research is pointing to serious environmental consequences of microplastic pollution.  

“One of the bad things is that it’s intentionally made to be small…and also very mobile,” says Robert Hale, an environmental scientist and professor at the Virginia Institute of Marine Science. Reports have found microplastics everywhere from the Antarctic to the deep ocean to, more recently, the placenta, feces, and blood vessels of humans.  

With glitter on the chopping block, experts discuss just how much damage a bit of plastic glitz can do and whether non-plastic alternatives offer viable solutions.  

Glitter in our ecosystem affects all life, including ours

Measuring less than five millimeters in length, most glitter is considered a microplastic and typically consists of three layers: a plastic core, a reflective coating, and a final thin, plastic layer. Like other microplastics—largely byproduct from the breakdown of bigger manufactured plastic—glitter has raised alarm because of how easily it can spread.

“It's oftentimes applied to a surface somewhat weakly…so it by nature falls off and is easily distributed,” Hale says. Over time, glitter particles fragment further making them smaller and more easily ingested. “When it gets small enough, it actually can enter cells…and participate or interfere with various essential biochemical reactions.”

( Microplastics are hidden in your home. Here’s how to avoid them .)

Microplastics are a known environmental hazard that are rampant in marine and terrestrial environments and, because of their size, nearly impossible to remove. High concentrations of glitter microplastics appear to hinder the growth of aquatic organisms , like phytoplankton and zooplankton, which form the base of the food chain and play a critical role in oxygen production and carbon dioxide consumption.

“This microplastic is so small, at the nanoscale, that [zooplankton] could eat this up and actually tear up their internal organs,” says study author Rafael Barty Dextro, a research biologist at the Center for Nuclear Energy and Agriculture in Brazil.  

Small amounts of glitter can add up quickly, accumulating in cells and larger animals higher up the food chain. Microplastics have become ubiquitous and highly concentrated in bodies of water , particularly marine sediments , where they get into the bodies of small fish and vertebrates, which are then consumed by larger species.

In a study on viral mortality in fish , Hale found that microplastics amplified the effects of the virus, likely by causing physical damage to the gills and allowing the pathogen to enter more easily. Testing has found microplastics in the gastrointestinal tracts and feces of terrestrial animals, including snakes, birds, and even livestock.  

You May Also Like

Biodegradable plastic exists—but it’s not cheap

In a first, microplastic particles have been linked to heart disease

What BPA can do to our bodies—and how to limit your exposure

( Microplastics have moved into virtually every crevice on Earth .)

It’s not just the plastic itself that can leach into and contaminate the environment—glitter is often made with all sorts of toxic, chemical additives for color and shine. “So all of this, once in contact with water and air, starts degrading and liberating all of those compounds into the water,” Dextro says.  

Though the worst impacts have been found in marine life and ecosystem, humans too are at risk, particularly from cosmetic glitters.

Hale warns that directly applying glitter to skin can result in absorption or inhaling of tiny plastic particles. Humans may ingest between 74,000 and 121,000 microplastic particles per year, according to a 2019 estimate . Though the physiological impacts are still being studied, he says, these “foreign bodies” have been linked to a host of issues , including DNA damage, organ dysfunction, and cardiovascular problems . One recent study found a correlation between high levels of microplastics in arterial plaque and heart and circulatory issues, while another study linked inflammatory bowel disease with higher concentrations of fecal microplastics.  

( Microplastics are in our bodies. How much do they harm us ?)

Even if the quantities of glitter are fairly small relative to other microplastic sources, Hale describes it as an unnecessary risk. “[Glitter is] one of these voluntary heavy exposures…and easily avoided.”

Solving the glitter problem

Growing fears about the dangers of microplastic build-up have driven some authorities to try to eliminate them outright.

In 2022, California considered, but did not pass, a bill that would have banned cosmetics and other products containing “intentionally added microplastics.” Glitter is prohibited within the annual confines of Burning Man’s Black Rock City , as well as dozens of British music festivals . So-called “glitter bans”—which prohibit the manufacture and sale of certain microplastic-containing products—are in effect in New Zealand and the European Union .

Others are trying to keep the makeup artists and festival-goers happy with alternative solutions, such as biodegradable glitter. Non-plastic options are starting to hit the market, offering glitters made from the likes of plant cellulose, cassava, and mica.

Bioglitter, the first manufacturer of non-plastic glitter, produces its eco-friendly glitz with cellulose from wood pulp, primarily eucalyptus. This extract is then made into a film, cut into hexagons, and coated with pigments, and, in some products, shellac—a glossy secretion from the lac beetle that adds shine. In as little as four to six weeks, the glitter will degrade naturally in environments that contain microorganisms, which “consume the glitter and turn it into harmless substances: water, carbon dioxide and biomass,” says Lauren Jones, founder of Luminosity Glitter, a Bioglitter retailer.  

But even biodegradable glitter may have its own problems. In preliminary studies , researchers found that cellulose and mica glitter was more damaging to duckweed and phytoplankton growth than conventional glitter.   “Ecotoxicological research is needed to test for impacts of any new types of glitter so we don’t end up just creating a new problem,” says author Dannielle Green, ecologist and plastic pollution expert at Anglia Ruskin University.

Others have seen more promising results. Though analysis is still ongoing, Mauricio Junior Machado, an agricultural microbiologist at the University of São Paulo, says that initial observations have not found any acute effects of cassava- and mica-based biodegradable glitter on the cell growth of freshwater cyanobacteria.  

In the meantime, Green emphasizes the value of individual actions, namely: don’t scatter or wash glitter down the drain. “We can make the decision to avoid glitter altogether or to dispose of it responsibly.”

Related Topics

• MICROPLASTICS
• PLASTIC WASTE
• WATER POLLUTION

Microplastics are in our bodies. How much do they harm us?

Microplastics are hidden in your home. Here’s how to avoid them.

California’s sweeping new plastics law could be a game changer

How a dramatic win in plastic waste case may curb ocean pollution

The world’s nations agree to fix the plastic waste crisis

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Definition of Unreasonable Refusal To Deal or Negotiate With Respect to Vessel Space Accommodations Provided by an Ocean Common Carrier

A Rule by the Federal Maritime Commission on 07/23/2024

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Supplementary information:, i. background, a. procedural history, b. scope of the rule, c. challenges faced by u.s. exporters, 1. trade deficit, 2. operational decisions, ii. comments, iii. discussion of comments, a. § 542.1(a): purpose (and applicability of the rule), 1. a common carrier's obligation to engage in both imports and exports, 2. application of the rule to nvoccs, 3. application of the rule to vehicle carriers/ro-ro vessels., b. § 542.1(b): definitions, 1. “blank sailing”, 2. “cargo space accommodations”, 3. “documented export policy”, 4. “sweeper vessel”, 5. “transportation factors”, 6. “unreasonable”, 7. “vessel space accommodations”, 8. proposed additional definition, c. § 542.1(c): elements for claims for unreasonable refusal of cargo space accommodations under 46 u.s.c. 41104(a)(3), 1. revising the proposed rule to strengthen carrier obligations to ensure that cargo accommodations remain available, 2. meaning of the phrase “when available” under 46 u.s.c. 41104(a)(3) and 46 cfr 542.1(c)(2) in association with blank sailings, d. § 542.1(d): non-binding considerations when evaluating unreasonable conduct under 46 u.s.c. 41104(a)(3), 1. business decisions, 2. expressly excluding certain classes of cargo, e. § 542.1(e): non-binding examples of unreasonable conduct under 46 u.s.c. 41104(a)(3), 1. § 542.1(e)(1) blank sailings/insufficient notice of scheduling changes, 2. § 542.1(e)(2) vessel capacity limitations not justified by legitimate transportation factors, 3. § 542.1(e)(3) alerting shippers with confirmed bookings, 4. § 542.1(e)(4) insufficient loading time, 5. § 542.1(e)(5) inaccurate or unreliable vessel information, 6. § 542.1(e)(6) categorical or systematic exclusion of exports, 7. § 542.1(e)(7) any other conduct the commission finds unreasonable, 8. requests for additional examples, f. § 542.1(f): elements for claims under 46 u.s.c. 41104(a)(10), g. § 542.1(g): non-binding considerations when evaluating unreasonable conduct under 46 u.s.c. 41104(a)(10), h. § 542.1(h): non-binding examples of unreasonable conduct under 46 u.s.c. 41104(a)(10), 1. § 542.1(h)(1): quotes above current market rates, 2. § 542.1(h)(2): categorically or systematically excluding exports, 3. § 542.1(h)(3): any other unreasonable conduct, i. § 542.1(i): use of sweeper vessels, j. § 542.1(j): documented export policy, 1. confidentiality, 2. the commission's legal authority to impose the obligation, 3. import policy, 4. miscellaneous concerns, 5. suggested changes to the text wording, k. § 542.1(k): shifting the burden of production, 1. clarifying the burden shifting process to explicitly state that it is the burden of production that shifts, not the burden of proof, 2. the current language is a deterrent to small- and medium-sized shippers, 3. setting forth a prima facie case, l. miscellaneous comments, 1. penalties/reparations, 2. the relationship between the prohibition on a refusal to deal and breach of service contracts, 3. this rule should be narrowly tailored to target unusual behavior that is contrary to traditional market practices, 4. freight forwarders, 5. preference cargo, iv. summary of final rule and changes from snprm, a. § 542.1(a) purpose, b. § 542.1(b) definitions, c. § 542.1(c) elements for claim under 46 u.s.c. 41104(a)(3), d. § 542.1(d) non-binding considerations when evaluating unreasonable conduct under 46 u.s.c. 41104(a)(3), e. § 542.1(e) non-binding examples of unreasonable conduct under 46 u.s.c. 41104(a)(3), f. § 542.1(f) elements for claim under 46 u.s.c. 41104(a)(10), g. § 542.1(g) non-binding considerations when evaluating unreasonable conduct under 46 u.s.c. 41104(a)(10), h. § 542.1(h) non-binding examples of unreasonable conduct under 46 u.s.c. 41104(a)(10), i. § 542.1(i) use of sweeper vessels, j. § 542.1(j) documented export policy, k. § 542.1(k) shifting the burden of production, vi. rulemaking analyses, a. regulatory flexibility act, b. congressional review act, c. national environmental policy act, d. paperwork reduction act, title: 46 cfr part 542 —common carrier prohibitions, e. executive order 12988 (civil justice reform), list of subjects in 46 cfr part 542, part 542—common carrier prohibitions, enhanced content - submit public comment.

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Federal Maritime Commission.

Final rule.

The Federal Maritime Commission (FMC or Commission) is issuing regulations to implement the Ocean Shipping Reform Act of 2022's prohibition against unreasonable refusals of cargo space accommodations when available and unreasonable refusals to deal or negotiate with respect to vessel space accommodations by ocean common carriers. This final rule adopts with changes the supplemental notice of proposed rulemaking published on June 14, 2023. This rule establishes the necessary elements for the FMC to apply Federal law with respect to refusals of cargo space accommodations when available. It also establishes the necessary elements for the FMC to apply Federal law with respect to refusals of vessel space accommodations. This rule applies to complaints brought before the FMC by a private party, as well as enforcement cases brought by the Commission.

This final rule is effective on September 23, 2024, except for instruction 2 adding § 542.1(j), and instruction 3 adding § 542.99, which are delayed. The Commission will publish a document in the Federal Register announcing the effective date of those amendments.

To view background documents or comments received, you may use the Federal eRulemaking Portal at www.regulations.gov under Docket No. FMC-2023-0010.

David Eng, Secretary; Phone: (202) 523-5725; Email: [email protected] .

The Ocean Shipping Reform Act of 2022 (OSRA 2022), Public Law 117-146 , was enacted on June 16, 2022. OSRA 2022 amended various statutory provisions contained in part A of subtitle IV of title 46, United States Code. OSRA 2022 made clear that the categorical refusal by an ocean common carrier, alone or in conjunction with another person, directly or indirectly, to accommodate U.S. exports, without demonstrating that the refusal is reasonable, is a violation of the Shipping Act. By definition, not all refusals will necessarily be a violation. Whether a refusal to deal or a refusal to negotiate falls within the scope of section 41104(a)(10), or a refusal of cargo space accommodations falls within the scope of section 41104(a)(3), depends upon the particular circumstances of a given case.

Section 7(d) of OSRA 2022 requires the Commission, in consultation with the United States Coast Guard, to initiate and complete a rulemaking to define the phrase “unreasonable refusal to deal or negotiate with respect to vessel space accommodations” provided by an ocean common carrier to work in conjunction with 46 U.S.C. 41104(a)(10) . In response to this requirement, on September 21, 2022, the FMC issued a notice of proposed rulemaking (NPRM) that proposed adding a new part 542 under title 46 of the Code of Federal Regulations (CFR), which would work in conjunction with 46 U.S.C. 41104(a)(10) . [ 1 ] The proposal considered the common carriage roots of 46 U.S.C. 41104(a)(10) , as well as the overall competition basis of the Commission's authority. [ 2 ]

On June 14, 2023, after reviewing the comments received in response to the NPRM, the Commission issued a revised and expanded supplemental notice of proposed rulemaking (SNPRM). In addition to addressing OSRA 2022's amendment to 46 U.S.C. 41104(a)(10) , the SNPRM also addressed OSRA 2022's amendment to 46 U.S.C. 41104(a)(3) , which prohibits a common carrier from unreasonably refusing cargo space accommodations when available. The restrictions that 46 U.S.C. 41104 (a)(3) and (a)(10) impose on ocean common carriers are distinct but closely related. Both provisions address refusals by ocean common carriers to accommodate shippers' attempts to secure overseas transportation for their cargo. The distinction between the conduct covered by these two provisions is timing, more specifically whether the refusal occurred while the parties were still negotiating and attempting to reach a deal on service terms and conditions (negotiation stage), or after a deal was reached (execution stage). If the refusal occurred at the execution stage, after the parties reached a deal or mutually agreed on service terms and conditions, then 46 U.S.C. 41104(a)(3) applies. If the refusal occurred at the negotiation stage, before the parties reached a deal or mutually agreed on service terms and conditions, then 46 U.S.C. 41104(a)(10) applies. Interpreting these related provisions in a single rulemaking allows the Commission to delineate the types of refusal conduct covered by 46 U.S.C. 41104 (a)(3) and (a)(10) and highlight the differences between them. As discussed in the SNPRM, restricting the rulemaking to refusals to deal or negotiate under 46 U.S.C. 41104(a)(10) would not address the reliability issues that commenters on the NPRM identified as a critical and a driving factor impeding their ability to ship cargo overseas. Shippers impacted by unlawful refusals to accommodate their requests for vessel space accommodations have been able to bring a cause of action against ocean common carriers since the OSRA 2022 amendments took effect immediately in Start Printed Page 59649 June 2022. They may find it more difficult, however, to plead and prevail on those claims without implementing regulations from the Commission defining the elements and statutory terms. Parties may also find it more difficult to identify and litigate claims for unreasonable refusals under 46 U.S.C. 41104(a)(3) without a clearer indication from the Commission of what conduct is covered by that provision as distinguished from 46 U.S.C. 41104(a)(10) . Clearly delineating these distinctions as part of the current rulemaking lessens the time and resources that shippers, carriers, and the Commission will otherwise need to devote to defining these concepts in individual cases. Defining the elements and terms used in 46 U.S.C. 41104(a)(3) as part of this rulemaking is also important because, in practice, it may be difficult to discern whether a carrier's refusal was at the negotiation or execution stage. Additional guidance from the Commission now may help avoid needless disputes over that issue.

The Commission acknowledges that it has not previously recognized a temporal distinction between (a)(3) and (a)(10). However, as discussed in the SNPRM, reading the conduct governed by 46 U.S.C. 41104(a)(10) to include the same conduct prohibited by 46 U.S.C. 41104(a)(3) , as amended by OSRA 2022, would violate the canon of statutory construction against construing statutes in a manner that renders language superfluous or meaningless. Previously, FMC distinguished (a)(3) from other prohibitions in 41104 based on the shipper's involvement in protected activity. [ 3 ] OSRA 2022, however, removed the protected entity and the protected activity language from (a)(3). [ 4 ] Therefore, there must be some other means of distinguishing the two provisions.

Consistent with section 7(d) of OSRA 2022, the Commission has consulted with the Coast Guard regarding this rulemaking. The Coast Guard offered no objections to the Commission's approach.

There are two types of common carriers—vessel-operating common carriers (VOCCs) and non-vessel-operating common carriers (NVOCCs). [ 5 ] Section 41104 applies generally to both VOCCs and NVOCCs; this rule, however, only applies to VOCCs. The specific prohibition in 46 U.S.C. 41104(a)(10) that is the subject of this rule applies only to VOCCs because “ocean common carrier” is defined as a vessel-operating common carrier in the Shipping Act. [ 6 ] Although 46 U.S.C. 41104(a)(3) and 46 U.S.C. 41104(a)(10) apply to both VOCCs and NVOCCs, this rule only applies to VOCCs to mirror the scope of the specific prohibition in 41104(a)(10) added by OSRA 2022. [ 7 ] The limitation in scope of this rule to VOCCs does not in any way limit the application of 46 U.S.C. 41104(a)(3) or 46 U.S.C. 41104(a)(10) . NVOCCs remain legally liable under 46 U.S.C. 41104(a)(3) and 46 U.S.C. 41104(a)(10) for violations of the Shipping Act.

Similarly, 41104 applies generally to roll-on/roll-off cargo, bulk cargo, and containerized cargo. This rule, however, only applies to containerized cargo because the sorts of issues that arose around container availability during the pandemic do not appear to have been present, or at least not present to the same extent, for roll-on/roll-off cargo or bulk cargo. While this rule is limited to containerized cargo, it does not preclude refusal to deal cases arising in the context of roll-on/roll-off cargo or bulk cargo—the framework in this rule could be applied to such cases. [ 8 ]

As noted in the SNPRM, the Commission will address, at a different time, the statutory requirement in section 7(c) of OSRA 2022 to complete a rulemaking defining “unfair or unjustly discriminatory methods” in 46 U.S.C. 41104(a)(3) .

The common carrier prohibitions in 46 U.S.C. 41104 do not distinguish between U.S. exports and imports. This rule applies to both.

One basis, but not the only one, for some of the OSRA 2022 provisions were the challenges expressed by U.S. exporters trying to obtain vessel space to ship their products. [ 9 10 ]

As discussed in the NPRM, there is a long-running U.S. trade deficit in goods (approximately $1 trillion in 2023) and an imbalance of imports and exports moving through U.S. ports in international trade. [ 11 ]

VOCCs, particularly those on the major east-west trade lanes between the United States and Asia and the United States and Europe, make operational decisions regarding the import and export goods they carry based on both economic and engineering considerations. Export loads are, on average, heavier than import loads. This means that ships that come into U.S. ports largely laden with goods cannot safely load the same number of laden twenty-foot equivalent units (TEUs) when leaving the United States for foreign ports. A higher volume of laden exports will result in a lower vessel utilization rate on the outbound voyage from the United States, resulting in fewer containers returning to where the Start Printed Page 59650 equipment is in highest demand. The economics of this trade imbalance result in very different revenue returns for import and export trades. U.S. imports feature higher value items on average and the rates that shippers pay to move these goods are historically higher than the rates paid to move U.S. exports. For example, the average rate of a 20-foot dry container moving from Shanghai to the U.S. West Coast was $1,740 in January 2019, $4,270 in January 2021, $8,130 in January 2022, $1,591 in January 2023 and $2,845 in January 2024. The corresponding rate for a 20-foot dry container moving from the U.S. West Coast to Shanghai was $730 in January 2019, $800 in January 2021, $1,220 in January 2022, $978 in January 2023, and $633 in January 2024. [ 12 ] Further, the inland destination of import containers is often not located near export customers, which requires equipment repositioning costs as well as the opportunity cost of unused equipment.

Prior to the pandemic, the ratio of import TEUs to export TEUs moving through U.S. ports across all trade lanes was over 50 percent; in April 2019 this ratio was 59 percent. [ 13 ] While containerized imports (measured in TEUs) increased steadily from May 2020 through April 2022, imports tapered off in the latter half of 2022 and containerized exports declined over the same period. There was an import-export TEU ratio of 45 percent in April 2023. Approximately 1.8 million TEUs of all U.S. imports moved through U.S. ports in April 2023, versus 1.98 million in April 2019. Total U.S. exports fell from 1.2 million TEUs in April 2019 to 803,673 in April 2023. [ 14 ]

Trade on some specific lanes is even more imbalanced. Trade from Asia to U.S. ports was characterized by an import/export TEU ratio of 39 percent in 2019, 36 percent in 2020, 29 percent in 2021, 28 percent in 2022, and 33 percent in 2023. As of January 2024, that number sits at 28 percent. There is no homogeneity among carriers, even within trade lanes. On the Asia to United States trade lane, among the largest carriers, the ratio of exports to imports ranged from 27 percent to 52 percent in 2019, from 23 percent to 44 percent in 2021, and from 27 percent to 57 percent in 2023. Some carriers had very stable export to import ratios throughout the pandemic, though most saw a substantial drop in both the ratio of exports to imports and the absolute number of export containers moved, particularly between 2020 and 2021. This pattern continued into the first quarter of 2022.

While some export markets have been affected by trade shocks, such as China's ban on solid waste imports and other items, these trade shocks do not fully explain the drop in total exports carried; nor do safety concerns over ship loading. These changes can be best explained by carrier operational decisions based on equipment availability and differential revenues from import and export transportation. [ 15 ] Common carriers stated they have seen delays in the movement of export cargo due to a lack of mutual commitment between shippers and common carriers leading to cancellations of vessel space accommodation by either party, sometimes up to the day of sailing. This contributes to uncertainty for both the shippers and common carriers.

In addition to the challenges faced by exporters, there have also been reports of restricted access to equipment and vessel capacity for U.S. importers, particularly in the Trans-Pacific market. Access to import vessel space was impacted by congestion, equipment availability, and VOCC commercial decisions. [ 16 ]

In response to the SNPRM, the Commission received 26 comments from a variety of interested parties. This included comments from freight forwarders, customs brokers, ocean transportation intermediaries (OTIs), chemical manufacturers, importers and exporters and distributors in a range of industries, vessel-operating common carriers (VOCCs), shipper trade associations, ocean carrier and marine terminal operator associations, ocean carrier agreements, shipping industry associations, agricultural exporter coalitions and one federal agency. All comments are available in the docket for this action (FMC-2023-0010) on Regulations.gov.

These comments are addressed in the discussion that follows.

Issue: One comment argued that the Commission's statement in the NPRM that ocean common carriers should offer service in both inbound and outbound trade is incorrect and inconsistent with Commission precedent. [ 17 ] The comment asserted that just because a common carrier holds itself out as a common carrier in U.S. imports does not mean that the carrier is obligated to act as a common carrier for U.S. exports.

FMC response: In the SNPRM, the Commission stated that “every ocean common carrier operating in the U.S. market is presumed by the Commission—barring the submission of further information to the contrary—to be able to transport both exports and imports.”  [ 18 ] Whether or not an entity is an ocean common carrier is determined on a case-by-case basis. [ 19 ]

Issue: World Shipping Council (WSC) argued that 46 U.S.C. 41104(a)(3) applies to all common carriers, including NVOCCs, and that to exempt NVOCCs from application of the Shipping Act, the Commission would need to first provide an opportunity for a hearing in accordance with 46 U.S.C. 40103 . [ 20 ] WSC further argued that the Commission creates a competitive advantage for NVOCCs by exempting them from liability under 46 U.S.C. 41104(a)(3) , while at the same time creating a situation that is “detrimental to commerce” by denying the NVOCC's customer a meaningful remedy for an NVOCC's violation of 41104(a)(3). [ 21 ] WSC stated that this would violate 46 U.S.C. 40103(a) 's standard that the Commission may only grant an exemption if it finds that the exemption would not result in substantial reduction in competition or be detrimental to commerce.

WSC also asserted that it is important to include NVOCCs within the scope of the rule as a practical matter as well as a legal matter because NVOCCs control cargo space accommodations. [ 22 ] WSC argued that NVOCCs, like VOCCs, can face situations in which the space available to them is exceeded by customer demand or is limited by safety, weight, stability, or other operational factors. WSC said that in such a situation, the NVOCC will have to decide which of its customers' containers are booked on that vessel and which are not.

By contrast, the National Customs Brokers & Forwarders Association of America, Inc. (NCBFAA) supported the rule's exclusion of NVOCCs. [ 23 ]

FMC response: WSC is correct that 46 U.S.C. 41104(a)(3) applies to both VOCCs and NVOCCs. This rule, however, only applies to VOCCs. The NPRM was limited to the OSRA 2022 amendments to 46 U.S.C. 41104(a)(10) , which is statutorily limited in scope to VOCCs because the Shipping Act defines an “ocean common carrier” as a vessel-operating common carrier. [ 24 ] The SNPRM adhered to this exclusion, despite the expansion of the proposal to also address 46 U.S.C. 41104(a)(3) , to mirror the scope of the affected population of the NPRM. The limitation in scope of this rule to VOCCs, however, does not in any way limit the scope of 46 U.S.C. 41104(a)(3) . NVOCCs are legally liable under 46 U.S.C. 41104(a)(3) for unreasonably refusing cargo space accommodations. For additional discussion see I, B of this preamble discussing the scope of this final rule.

Issue: World Shipping Council (WSC) asked the Commission to clarify the applicability of the rule to VOCCs that are vehicle carriers. [ 25 ]

FMC response: This rule does not apply to roll-on/roll-off cargo (or to bulk cargo). The definitions of “cargo space accommodations” and “vessel space accommodations” in this rule are limited to containerized cargo because the sorts of issues that arose around container availability during the pandemic were not present, or at least not present to the same extent, for roll-on/roll-off cargo or bulk cargo vessels. In response to this comment, the FMC has revised § 542.1(a) to clearly state that part 542 is limited to containerized cargo. While this rule defines refusal to deal cases with regards to containerized cargo, it does not preclude refusal to deal cases to which the statute applies, such as cases arising in the context of roll-on/roll-off cargo or bulk cargo. See also I, B of this preamble discussing the scope of this final rule.

In response to comments on §§ 542.1 (e)(1) and (j)(1)(i) the Commission has added a definition of “blank sailing” to § 542.1(b). For additional discussion regarding blank sailing, see the discussion regarding 46 CFR 542.1(c) and the request to define “when available”.

(a) Revising the definition to include language regarding whether cargo space accommodations have been confirmed.

Issue: The National Industrial Transportation League (NITL) recommended revising the definition of “cargo space accommodations” to “space which has been negotiated for and/or confirmed aboard the vessel . . .”  [ 26 ] NITL argued that adding “or confirmed” would broaden the definition to instances where space has not been “negotiated” between a carrier and a shipper in the traditional sense— i.e., there have been no “back and forth” communications between the two parties but rather involve a shipper's request for vessel space under an existing service contract or other arrangements, and a responsive vessel booking confirmation from the carrier. [ 27 ] NITL agreed with the Commission that the proposed definition includes situations where the parties may have an existing relationship and already mutually agreed on terms and conditions via a booking confirmation, but that shippers sometimes purchase vessel space without negotiating after reviewing an ocean carrier's tariff by paying the rate quoted in the tariff. NITL argued that the proposed definition does not explicitly contemplate such a situation. [ 28 ]

Similarly, the National Association of Chemical Distributors (NACD) supported the adoption of the definition of “cargo space accommodation” proposed in the SNPRM but expressed concern that this definition only covered “negotiated” vessel space. [ 29 ] NACD noted that its members have experienced cancelled bookings and unfulfilled agreements when space is confirmed and urged the Commission to include confirmed vessel space in this definition. [ 30 ]

FMC response: In response to these comments, the Commission has added the language “or confirmed” to the definition of “cargo space accommodations.” Using the phrase “or confirmed” rather than the phrase “and/or confirmed” aligns with the Federal Plain Language Guidelines' recommendation to avoid the use of slashes to avoid ambiguity.

(b) Trans-shipment of cargo.

Issue: BassTech International (BassTech) suggested removing the clause “from a vessel calling at a U.S. port” from the last line of the definition of “cargo space accommodations”. [ 31 ] BassTech argued that the services necessary to load or unload cargo at a U.S. port are also necessary to load and unload cargo to a vessel that might not call on a U.S. port but from which the cargo may be trans-shipped onto a vessel that then calls on a U.S. port. [ 32 ]

FMC response: The Commission declines to make this change. This rulemaking is not intended to address the situation BassTech describes, nor are changes to the definition of “cargo space accommodations” that BassTech suggests likely to resolve the matter. A future rulemaking could address these considerations, if necessary.

(c) Proposed definition is vague and confusing. Start Printed Page 59652

Issue: Caribbean Shipowners' Association, FMC Agreement No. 010979 and Central America Discussion Agreement, FMC Agreement No. 011075 (the “Agreements”) said that the phrase “space which has been negotiated for” within the definition of “cargo space accommodations” is “vague and confusing”. [ 33 ] The comment stated that the definition of “cargo space accommodation” arguably includes space which was negotiated for but for which no agreement was reached, and that this is inconsistent with the Commission's intent to apply 46 U.S.C. 41104(a)(3) to the execution stage. The Agreements argued that the Commission needs to clarify this definition, and that the clarification should consider the various ways in which carriers and their customers reach agreement: through service contract negotiations, through automated contracting processes, and under tariff rates. As an example, the Agreements asked whether the parties have “negotiated for” space where a shipper tenders cargo to a carrier under a rate the carrier has published in its tariff and when that rate was not agreed upon with the shipper prior to publication.

FMC response: As noted above, in accordance with other comments, the Commission has added the phrase “or confirmed” to clarify the definition's scope. This definition remains broad enough to encompass the various methods by which carriers and the customers reach agreements, as this rule is intended to regulate unreasonable refusals to deal rather than whether carriers and their customers reach agreements by way of contract negotiations, automated contracting processes, or under tariff rates.

(d) Whether space onboard a vessel has been agreed to when a booking confirmation is issued.

Issue: In the SNPRM, the Commission asked for comments on whether space onboard a vessel has been agreed to at the time of issuance of a booking confirmation. [ 34 ] The National Industrial Transportation League (NITL) stated that it believes that a booking confirmation does represent the carrier's commitment and agreement to provide access to vessel space as reflected in the confirmation, since such confirmations are issued after the carrier evaluates the specific request for services. [ 35 ] Similarly, the International Federation of Freight Forwarders Associations (FIATA) expressed that a booking confirmation represents the conclusion of a contract to transport the cargo, and that the booking should be honored such that the shipper is obligated to deliver the container and the carrier to accept it as agreed to in the booking confirmation. FIATA noted that this would apply to NVOCCs as well as beneficial cargo owners (BCOs), since they both rely on VOCCs to adhere to contracted terms regarding space allocations. [ 36 ]

By contrast, the National Customs Brokers & Forwarders Association of America, Inc. (NCBFAA) suggested that space accommodations are not agreed to at the time of a booking confirmation. [ 37 ] NCBFAA stated that booking confirmations are merely acknowledgments from the ocean carrier that the shipper's request for carriage has been received. NCBFAA noted that booking confirmations typically contain language stating that the confirmation information is subject to change due to vessel space, and that ocean carriers are understood to take shipment bookings six to eight weeks prior to the projected departure date, meaning that not all details are finalized. NCBFAA stated that ocean carriers ultimately determine whether cargo shall be loaded on a particular vessel regardless of whether the shipper has received a booking confirmation and that ocean carriers may ultimately revise the minimum quantity amount by reducing the volume they will accept. Lastly, NCBFAA stated that often shippers are provided little to no notice of these reduced capacities and are given limited recourse. As a result, NCBFAA concluded that space accommodations are merely requested and not necessarily treated as agreed to by the ocean carrier at the time of booking.

FMC response: In the SPNRPM, the Commission requested input on whether vessel space has been agreed to at the time of a booking confirmation because the term “cargo space accommodations” concerns situations where the parties have an existing relationship and/or already mutually agreed on terms and conditions via a booking confirmation. [ 38 ] As such, in these situations, the Commission presumed that there is some evidence that negotiation for space aboard the vessel has already occurred. In accordance with the input supplied by NITL and FIATA, the Commission will continue to maintain the temporal distinction between 46 U.S.C. 41104(a)(3) and 46 U.S.C. 41104(a)(10) that the SNPRM expressed: claims under 46 U.S.C. 41104(a)(10) will generally involve those actions occurring prior to a carrier providing a shipper with a booking confirmation to carry that shipper's cargo. When read in conjunction with this provision, to “unreasonably refuse cargo space accommodations” under 46 U.S.C. 41104(a)(3) will involve a set of acts that occur after a booking has been confirmed.

Lastly, the Commission notes that the experiences that NCBFAA describes in its comments are the type of practices that this regulation is meant to change within the industry in order to establish fewer cancelled bookings and more certainty.

Issue: One commenter requested clarification of the phrase “practices and procedures” used in the proposed definition of “documented export policy.”  [ 39 ] The commenter said that guidance as to the meaning of this term is needed to better understand what is necessary to include in a documented export policy as the proposed § 541.1(j)(1) did not appear to include anything that could be described as a “practice or procedure.” Another commenter suggested that “practices and procedures” be replaced with “reasonable practices and procedures” to emphasize that ocean common carriers may not unreasonably refuse a class of cargo. [ 40 ]

FMC response: The terms “practices” and “procedures”, as used in the definition, have their normal and ordinary meaning. [ 41 ] The information required by paragraph (j)(1)—pricing strategies, services offered, strategies for equipment provision, and description of markets served—are clearly practices and procedures as they describe an ocean common carrier's usual way of doing business. The same is true for the effect of blank sailings or other schedule disruptions and alternative remedies in paragraphs (j)(1)(i) and (ii). In this final rule, the Commission has also added a Start Printed Page 59653 requirement, in (j)(1)(ii), that the documented export policy include the ocean common carrier's rules and practices for the designation and use of sweeper vessels.

FMC declines to add the qualifier “reasonable” to “practices and procedures”. Doing so would potentially create a circular analysis as a primary purpose of requiring ocean common carriers to have a documented export policy is to help the agency determine whether a particular refusal was reasonable or unreasonable.

Issue: BassTech International suggested that “voyage” be inserted between “vessel” and “exclusively designated” to clarify that it is not a ship but a specific voyage of a ship that is designated as “sweeper”. [ 42 ] MSC Mediterranean Shipping Company (USA) Inc. [ 43 ] and World Shipping Council  [ 44 ] requested that FMC revise the definition of “sweeper vessel” to permit designated sweeper vessels to carry empty containers so that they can also carry export cargo if they have the capacity to do so.

FMC response: The FMC declines to revise the definition of “sweeper vessel”. The definition, however, is not intended, and should not be used, to prevent carriage of cargo if the vessel has the capacity to do so—even if the primary purpose of a particular voyage may be to reposition empty containers. Rather, the definition of a “sweeper vessel” proposed in the SNPRM and adopted by this final rule ensures that if a vessel carries containerized cargo, even one box of cargo, then the default presumption is that the carriage is undertaken in common carriage and thus subject to the unreasonable refusal to deal or negotiate requirements of 46 U.S.C. 41104(a)(3) and (a)(10) . An ocean common carrier should not be excepted from the requirements of 46 U.S.C. 41104(a)(3) and (a)(10) just because they are carrying only a small amount of cargo. An ocean common carrier likewise cannot avoid complying with the provisions of this rule by unreasonably designating a vessel as a “sweeper vessel” for only certain legs of an overall trade route. If a complaint is brought, an ocean common carrier may present relevant information to the Commission to demonstrate why designation as a sweeper vessel in the particular case was reasonable.

(a) Intermodal and landside considerations.

Issue: Some commenters requested that the definition of “transportation factors” be expanded to include intermodal considerations, such as train service on through bills of lading  [ 45 ] and landside considerations such as port operations, rail capacity, scheduling and performance, trucking capacity, and availability of warehouse dock appointments. [ 46 ]

FMC response: FMC declines to expand the definition to include intermodal or landside considerations. As noted in the SNPRM, “[g]enerally, . . . . transportation factors relate to the characteristics of the vessel . . . .”  [ 47 ] Because intermodal considerations and landside considerations do not relate to vessel characteristics, it would be inappropriate to expand the definition as requested. FMC notes, however, that such considerations may be considered by the Commission as “other factors relevant in determining whether there was a refusal” under 46 CFR 542.1(d)(4) and (g)(4) .

(b) Character of cargo.

Issue: Caribbean Shipowners' Association, FMC Agreement No. 010979 and Central America Discussion Agreement, FMC Agreement No. 011075 (the “Agreements”) requested that the definition of “transportation factors” be expanded to include more than just vessel-related factors, and specifically requested that the definition be amended to include character of the cargo, competition, and cost of providing services. [ 48 ] As an example of why, the Agreements noted that foodstuffs may require specialized, food-safe containers, and that those containers may need to be de-contaminated between loads in order to carry back-to-back food shipments. [ 49 ] They noted that this may lead to some carriers opting not to carry foodstuffs on the back half of a haul in those containers.

FMC response: FMC declines to expand the definition beyond vessel-related considerations. As noted in the SNPRM, “[g]enerally, . . . . transportation factors relate to the characteristics of the vessel . . . . ”  [ 50 ] FMC notes, however, that such additional considerations as those raised by the commenters may be considered by the Commission as “other factors relevant in determining whether there was a refusal” under 46 CFR 542.1(d)(4) and (g)(4) .

(c) Disruptions in carrier networks.

Issue: Two commenters also requested that the definition of “transportation factors” be amended to expressly incorporate disruptions in carriers' networks. [ 51 ]

FMC response: FMC declines to expand the definition to include disruptions in carriers' networks. As noted in the SNPRM, “[g]enerally, . . . . transportation factors relate to the characteristics of the vessel . . . . ”  [ 52 ] Because disruptions to carriers' networks do not relate to vessel characteristics, it would be inappropriate to expand the definition as requested. FMC notes, however, that such considerations can be considered by the Commission as “other factors relevant in determining whether there was a refusal” under 46 CFR 542.1 (d)(4) and (g)(4) .

(d) Foreseeability.

Issue: Some commenters said that the Commission should narrow the scope of the definition of “transportation factors” to differentiate between factors that are reasonably foreseeable to the carrier under the circumstances and those that are not reasonably foreseeable. [ 53 ] In particular, the Retail Industry Leaders Association (RILA) argued that in the majority of circumstances, these factors are reasonably foreseeable and the carrier has a responsibility to its customers to forecast and plan for those factors. RILA stated that the regulation's failure to distinguish between foreseeable and unforeseeable events allows the carriers to make a general assertion, such as “port congestion,” Start Printed Page 59654 and advance that as a legitimate transportation factor. [ 54 ] Other commenters raising this issue made the same arguments. [ 55 ] By contrast, Caribbean Shipowners' Association, FMC Agreement No. 010979/Central America Discussion Agreement, FMC Agreement No. 011075 (the “Agreements”) said that the definition should include factors within the control of the vessel operator. [ 56 ] In particular, the Agreements argued that there are numerous operational situations in which a carrier makes a conscious decision to change its vessel operations in some way, such as to omit a scheduled port of call, or to change the order in which it calls at particular ports for reasons such as weather or because of port closures. [ 57 ] The Agreements argued that under proposed § 542.1(e), with the definition of “transportation factors” in the SNPRM, many decisions of this type could be considered unreasonable and that the Commission should make clear that it will consider the impact of any such decision on other customers, ports, and the supply chain as a whole when assessing reasonableness. [ 58 ]

FMC response: The Commission agrees that it would be beneficial to clarify that the definition of “transportation factors” is not intended to include factors that are reasonably foreseeable by a vessel operator and has amended the regulation accordingly. We also agree with the statement that “[i]f a transportation factor is reasonably foreseeable by the carrier, then the carrier has a responsibility to its customers to find alternative pathways to deliver the cargo and otherwise mitigate the negative impacts of that factor.”  [ 59 ] FMC has modified the definition accordingly in this final rule.

In addition, the Commission believes the Agreements are misinterpreting the proposal. The Commission understands the ever-changing shipping landscape and that it can be affected by a number of items. This rule does not automatically punish a carrier for making decisions in response to changing conditions. To the contrary, the Commission's examination of cases involving a refusal to deal or negotiate may examine all factors that led a carrier to make that decision, in order to determine whether the decision was reasonable.

(e) Contractual obligations.

Issue: Caribbean Shipowners' Association, FMC Agreement No. 010979 and Central America Discussion Agreement, FMC Agreement No. 011075 asserted that the definition of “transportation factors” is unduly narrow and should be amended to account for carriers' minimum service commitments made pursuant to its service contracts. [ 60 ]

FMC response: Another commenter raised this concern in its input regarding the non-binding considerations when evaluating unreasonable conduct of § 542.1(d). The Commission has addressed this issue under that subsection.

(a) Proposed definition is too vague and subjective.

Issue: Several commenters asserted that the FMC's proposed definition of “unreasonable” in the SNPRM was too vague and subjective and were concerned that any conduct could fit into the definition. [ 61 ] Some of these commenters said that the agency had failed to explain a “rational connection between the facts found and the choice made” and that therefore promulgation of the proposed definition into the CFR would be arbitrary and capricious and therefore violate the Administrative Procedure Act (APA). [ 62 ]

FMC response: FMC disagrees with commenters that the rule's definition of “unreasonable” is too vague and therefore contrary to law. Although commenters referenced the APA, these assertions are better categorized as a Fifth Amendment, Due Process concern. Most of the cases dealing with the Vagueness Doctrine construe statutes as opposed to regulations; however, the same legal principles apply to both. [ 63 ] Due Process does not require mathematical precision; rather, it requires only “boundaries sufficiently distinct for judges and juries fairly to administer the law”. [ 64 ] Fair notice requirements apply to civil statutes and regulations when penalties or drastic sanctions are at stake;  [ 65 ] however, courts demand less precision of statutes and regulations that impose only civil penalties because the consequences are less severe. [ 66 ]

Paragraphs (a)(3) and (10) of 46 U.S.C. 41104 prohibit ocean common carriers from “unreasonably” refusing cargo space accommodations or refusing to deal or negotiate with respect to vessel space accommodations in specified conditions. Neither OSRA 2022, nor previous amendments to the Shipping Act, define the term “unreasonable”. Section 7 of OSRA 2022 mandated the FMC to issue a rulemaking “defining unreasonable refusal to deal or negotiate with respect to vessel space under [ 46 U.S.C. 41104(a)(10) ].”  [ 67 ] FMC was therefore required to develop a definition of the term as part of meeting this mandate.

The power delegated by Congress to an agency generally does not include the inherent authority to decide whether a particular statute (or regulation) that the agency is charged with enforcing is constitutional. [ 68 ] Therefore, the FMC must assume as a starting premise that the legal standard set by Congress of unreasonableness in 46 U.S.C. 41104(a) (3) and (10) is legally valid. Additionally, “reasonable”, the inverse of “unreasonable”, is a familiar legal standard. [ 69 ] Indeed, “reasonable and Start Printed Page 59655 prudent” standard statutes are ubiquitous throughout the United States and have been uniformly upheld against constitutional challenges. [ 70 ] Because the underlying conduct—unreasonable refusal—is not unconstitutionally vague, neither is the FMC's implementing regulation defining the term. [ 71 ]

The definition of “unreasonable” proposed in the SNRPM, and adopted in this final rule, is not arbitrary or capricious under the APA. As discussed in depth in the NRPM reasonableness is necessarily a case-by-case determination. [ 72 ] The definition of “unreasonable” proposed in the SNPRM and adopted by this final rule takes that into account, while providing an overarching definition, in line with the purposes of OSRA 2022 and the Shipping Act, as amended, as a whole, that is applicable in both 46 U.S.C. 41104(a)(3) and 41104(a)(10) claims. [ 73 ] Furthermore, FMC has provided notice and opportunity to comment on both the original NPRM and, later, in the SNPRM, regarding the best interpretation of the term “unreasonable”, and how, in future enforcement, FMC intends to evaluate unreasonable behavior with respect to refusal of cargo space accommodations and refusal to negotiate with respect to vessel space accommodations. The promulgation of this rule through notice-and-comment procedures reduces vagueness concerns by providing fair notice of the definition of “unreasonable” and elements for a claim under 46 U.S.C. 41104(a)(3) and 41104(a)(10) .

(b) Meaning of “meaningfully access”.

Issue: Two commenters requested guidance on how the Commission will interpret the phrase “meaningfully access” in the definition of “unreasonable”. [ 74 ] One of the commenters noted that clarification of the term “would be helpful especially in the context of the spot market and common carriage arrangements.”  [ 75 ]

FMC response: FMC declines to define the phrase “meaningfully access” at this time. Determinations of what “meaningfully access” means are better decided on a case-by-case basis.

(c) Suggested changes.

Issue: The National Industrial Transportation League (NITL) and BassTech International suggested including “from the ocean common carrier” at the end of the definition of “unreasonable” to clarify that a carrier cannot escape liability for an “unreasonable refusal” by asserting that alternative market choices and service options from other carriers were available. [ 76 ]

World Shipping Council (WSC) and MSC Mediterranean Shipping Company (USA) Inc. (MSC) asserted that in accordance with Commission precedent, the regulatory text should be amended to clarify that the appropriate standard for interpreting conduct under (a)(3) and (a)(10) is one of commercial reasonableness. [ 77 ]

FMC response: FMC agrees with NITL and BassTech and has added the suggested language, “from the ocean common carrier” at the end of the definition. FMC declines to amend the rule, in the definition of “unreasonable”, or elsewhere, to re-frame the standard as whether it was “commercially unreasonable” as requested by WSC and MSC. As discussed in the SNPRM, “profit and business factors may be present in negotiations [or execution], but these factors . . . have to be considered alongside other factors presented when the Commission is determining what the true driving factor is for refusing to deal in a given case and whether that driving factor is reasonable.”  [ 78 ] The Commission re-emphasizes that the rule allows the Commission to consider any relevant factor in determining whether a refusal to deal or negotiate was unreasonable.

FMC did not receive any comments that expressed concern regarding the proposed definition of “vessel space accommodations”. The agency is implementing the definition in this final rule without change from the SNPRM.

Issue: The Retail Industry Leaders Association (RILA) and the International Dairy Foods Association (IDFA) requested that FMC amend 46 CFR 542.1(b) to add a definition of “legitimate,” as is used in §§ 542.1 (d)(3) and (g)(3) when it modifies “transportation factors.”  [ 79 ] According to the commenters, lack of a definition could lead to a wide variety of interpretations and substantial disagreements. The commenters proposed that the term be defined as “a transportation factor that was not reasonably foreseeable by an ocean common carrier under the circumstances.”  [ 80 ]

FMC response: The Commission declines to define “legitimate” as part of this rulemaking. The agency believes that changes made to the definition “transportation factors” in this final rule to address similar concerns about foreseeability sufficiently address these commenters' concerns.

Issue: The International Dairy Foods Association (IDFA) argued that an ocean common carrier's refusal of cargo space is the crux of the problem faced by shippers, especially small and medium-sized shippers, because ocean carriers effectively control shippers' access to their existing and potential customers in overseas markets. [ 81 ] IDFA stated that carriers' failure to honor the terms of a contract and provide the cargo space that has been contracted for has negative repercussions for U.S. dairy exporters who, in some cases, have been forced to absorb the high cost of air freighting Start Printed Page 59656 their goods to their customers in order to meet their contract deadlines, or risk losing those customers to suppliers in other markets. [ 82 ] To help address this issue, IDFA recommends that the Commission strengthen the regulatory text to clarify that an ocean carrier needs to be proactive in ensuring that cargo space is available when it has been contracted for. [ 83 ]

Specifically, IDFA points to the second element for a successful claim under § 542.1(c)—namely, that “[t]he respondent refuses or refused cargo space accommodations when available.” IDFA argued that it cannot be the case that a carrier, facing reasonably foreseeable factors, can take no action to ensure that cargo space that has been contracted for is available to its customers, and then be allowed to assert that cargo space accommodations are not “available.” IDFA argued that such an interpretation would unfairly absolve a carrier from its commitments to a shipper.

IDFA also argued that the carrier has exclusive control of information regarding space availability, and that as such, it is unfair for a private party or the Commission to bear the burden of proving that space was available before the reasonableness discussion under § 541.2(c)(3) can begin. IDFA argued that the Commission should revise § 541.2(c) to address this issue by inserting a provision to clarify that the Commission's determination of whether cargo space accommodations were “available” for purposes of § 542.1(c)(2) will not be determined solely on a carrier's assertion of unavailability, but that the Commission will also base its determination on: (1) whether availability issues were reasonably foreseeable under the circumstances; and (2) if so, what actions, if any, the carrier took to ensure that the cargo space the shipper had contracted for would be available or, in the alternative, to find other cargo space accommodations.

FMC response: In response to this comment and others received in response to the SNPRM, the Commission has added language to the definition of “transportation factors” in § 542.1(b) to address whether the factors at issue were reasonably foreseeable by the carrier. The Commission has also added language to the definition of “unreasonable” in § 542.1(b) to clarify that it means conduct that unduly restricts the ability of shippers to meaningfully access ocean carriage service “from that ocean common carrier.” The Commission believes this language is broad enough that, if a refusal to deal case is brought before the Commission, the Commission can examine what actions the carrier took to ensure that cargo space the shipper had contracted for would be available or, in the alternative, to find other cargo space accommodations.

Issue: Both MSC Mediterranean Shipping Company (USA) Inc., (MSC)  [ 84 ] and World Shipping Council (WSC)  [ 85 ] requested that the Commission provide an interpretation of the phrase “when available” as it appears in 46 U.S.C. 41104(a)(3) and 46 CFR 542.1(c)(2) . These commenters assert that “when available” is an important qualifier because it narrows when the Commission can say a carrier has unreasonably refused cargo space accommodations to occasions on which the space can reasonably be considered available. These commenters also asserted that the meaning of “when available” is directly relevant to the Commission's treatment of blank sailings, which the Commission discusses in the context of the proposed export policy requirement and in the example in proposed § 542.1(e)(1).

Next, these commenters argue that by not addressing the meaning of the statutory phrase “when available,” the Commission ignores the point that when a vessel call is cancelled or delayed, by definition, there is no space available on that vessel on its originally scheduled call date. The commenters further argue that under a statutory provision that is limited to situations in which vessel space is available, it is logically incoherent to impose regulations that apply to situations in which the vessel is not even present. The statutory language indicates that Congress only intended to address the situation that arises when a vessel is at the port and has useable space, but the carrier unreasonably denies loading of cargo. The commenters argue that instead of following this mandate, the Commission has ignored the “when available” limitation, and in so doing, has opened up an almost limitless universe of possible Shipping Act claims never contemplated or authorized by OSRA 2022. [ 86 ]

Lastly, the commenters argue that the Commission cannot ignore “when available” in defining what it means to be an unreasonable refusal to provide cargo space, because, under the “whole text” canon of statutory interpretation, the Commission must consider all instructions given by Congress. Because OSRA requires the Commission to define “unfair or unjustly discriminatory methods” and “unreasonable refusal [of] cargo space accommodations when available” is a subcategory of those methods, the Commission must consider “when available” when defining this element. [ 87 ]

FMC response: The Commission declines to add a definition of “when available.” Determinations of what “when available” means are necessarily made based on the individual set of facts and circumstances of each case. This is consistent with the Commission's case-by-case approach, which was explained in both the NPRM and the SNPRM.

Issue: The SNPRM removed “business decisions” as an explicit factor that the Commission would be required to consider in determining whether there was an unreasonable refusal to deal. [ 88 ] However, the preamble to the SNPRM made clear that the change would still allow the Commission to consider any relevant factor in determining whether a refusal to deal or negotiate was unreasonable. [ 89 ] A number of comments advocated for reincorporating business decisions explicitly back into the regulatory text in the final rule. [ 90 ]

MSC Mediterranean Shipping Company, (USA) Inc. (MSC) and World Shipping Council (WSC) argued that by expressly removing business decisions from the regulatory text, the Commission is effectively saying, despite its assurances in the SNPRM's preamble, that business factors will no longer be considered in evaluating reasonableness. [ 91 ] They assert that the explanation the Commission offered for Start Printed Page 59657 this removal—that business factors are too important to be included in the regulation—is directly contrary to the Commission's claim that all legitimate factors will be considered. [ 92 ] As a result, they argued that FMC must explicitly reincorporate business decisions into the list of factors to be considered by the Commission when adjudicating a claim. [ 93 ] WSC argued that removing business decisions from the regulatory text is a conscious and systematic refusal by the Commission to consider what it has itself identified as an important part of the analysis, and thus constitutes a failure to consider a critical part of the issue under the Administrative Procedure Act (APA), 5 U.S.C. 706 . [ 94 ]

Hapag-Lloyd (America) LLC (Hapag-Lloyd) argued that business factors are necessary considerations to ensure the safety of personnel and the operational success of a voyage. [ 95 ] It stated that a carrier's non-vessel-based personnel and operations can have a direct impact on the operational success of a voyage and the safety of all personnel involved. Hapag-Lloyd argued that customer conduct can become disruptive in other ways, including customer harassment or misconduct towards an ocean carrier's employees, which can have detrimental effects on the well-being of the workforce and the overall work environment.

Hapag-Lloyd disagrees with the Commission's reluctance to use profitability as a factor for determining reasonableness, given that it is a for-profit company, and profit is important to ensuring a competitive and sustainable service. Hapag-Lloyd asserted that customers' consistent fraudulent behavior and non-payment for services can affect the company's bottom line, and that in such instances, an ocean carrier should be allowed to refuse dealing with the offending customers. [ 96 ]

ZIM Integrated Shipping Services Ltd. (ZIM) argued that removal of business decisions from the factors goes against Commission regulations and precedent. In particular, ZIM argued that Commission regulations define ocean common carriers as “hold[ing] [themselves] out to the general public to provide transportation by water of passengers or cargo between the United States and a foreign country for compensation. ”  [ 97 ] Furthermore, citing Docking & Lease Agreement By & Between City of Portland, ME & Scotia Princess Cruises, Ltd., ZIM argued that the Commission recognized that decisions “connected to a legitimate business decision or motivated by legitimate transportation factors” are presumptively reasonable. [ 98 ]

In addition, ZIM argued that while the Commission's focus on the potential for business decisions to overwhelm the rest of the factors may be legitimate, it does not justify disregarding critical factors in the equation or eliminate the duty to determine if a refusal to deal was in violation of the Shipping Act. Instead, it requires the finder of fact to consider the various operational factors within the carrier's control, as well as factors such as profit, cargo type, customer balance and other factors that fall within the definition of legitimate business factors. [ 99 ]

CMA CGM argued that exporters and importers would be penalized by the Commission's failure to recognize carriers' legitimate business considerations as “legitimate transportation factors,” because it is not viable for carriers to offer services to customers who present risks such as non-payment, mis-declaring cargo, improperly packaging hazardous cargo and/or causing “fall down” by placing bookings for vessel space which they failed to fulfill. CMA CGM asserts that continued service to customers, as well as the viability of the supply chain, depends on carriers being able to exercise legitimate business discretion.

OOCL argued that while it is clear that business decisions are being removed under the premise that these would become a core factor for carriers to refuse space or equipment to support customer's ability to ship cargo, this bears no resemblance to the ability of any business to effectively manage its operations. OOCL argued that business factors will always be part of any consideration—and should remain so in any free market economy. [ 100 ]

FMC response: The Commission declines to explicitly re-insert business decisions into the regulatory text. The rule, however, explicitly allows the Commission to consider any relevant factor in determining whether a refusal to deal or negotiate was unreasonable. [ 101 ] This includes non-transportation factors, such as business decisions (which includes profit considerations). The Commission has made clear that information on business decisions relevant to establishing a reasonable refusal to deal would still be relevant to the Commission's analysis. [ 102 ] Therefore, the Commission has not refused to consider an important part of the analysis. The Commission, however, must look at the totality of circumstances relevant to each case to determine whether or not an ocean common carrier has acted unreasonably. For this reason, the Commission has removed business factors from being specifically listed as a requirement the Commission must consider to something that the Commission “may” consider, and is not precluded from doing so.

(a) Internal inconsistency within the regulation.

Issue: Caribbean Shipowners' Association, FMC Agreement No. 010979/Central America Discussion Agreement, FMC Agreement No. 011075 (the “Agreements”) noted that one element the rule would require to be included in a documented export policy is pricing strategies, and that the Commission indicated that certain business decisions should be justified in the documented export policy. [ 103 ] At the same time, the Commission has proposed excluding legitimate business factors from the reasonableness factors. The Agreements argue that these two positions are inconsistent. In addition, the Agreements question the veracity of the Commission's informal statement that business decisions would still be relevant to its analysis of reasonableness is of no comfort to the Agreements, given the position taken by the Commission in its brief in Evergreen v. United States. [ 104 ] There, the Agreements assert, the Commission argued it is not required to consider factors that are not expressly included in the regulations. As a result, the Agreements argue that if legitimate business considerations will be considered, the regulations should so state. [ 105 ]

FMC response: One reason the Commission is requiring a documented export policy is to determine whether a carrier's decisions adhere to that policy. Start Printed Page 59658 The degree of divergence from that policy will be one factor that the Commission may consider in a refusal to deal or negotiate case. In doing so, the Commission is not making any statements on pricing strategy as a business factor. As such, requiring pricing strategy to be part of the documented export policy is consistent with removing business factors from being explicitly stated in the rule.

The key difference is between regulations that state that the Commission must do something, and situations in which the Commission is not precluded from doing something. 106 In the present matter, the Commission has removed business factors from being specifically listed as a requirement the Commission must consider under transportation factors. The Commission is moving them from a position that it “must” consider these factors to a position that the Commission “may” consider them and is not precluded from doing so. As such, we find no inconsistency in this position.

(b) Parties' prior dealings as a consideration when evaluating unreasonable conduct.

Issue: Retail Industry Leaders Association (RILA) argued that the parties' prior course of dealings should be explicitly added to the final rule as a consideration for the Commission in evaluating unreasonable conduct. RILA argued that it is “critical to evaluate past business actions in the context of allegations to refuse the provision of service.”  [ 107 ] Hapag-Lloyd (America) LLC (Hapag-Lloyd) made similar arguments against the Commission's removal of legitimate business factors, as discussed above. [ 108 ]

FMC response: The Commission declines to explicitly add this factor into the regulatory text of the final rule. However, the Commission maintains that in the course of deciding these matters on a case-by-case basis, the parties' prior relationship and conduct may be one of the factors it examines in determining whether an ocean common carrier's conduct is unreasonable. In these cases, the Commission will continue to examine the totality of the circumstances and is not precluded from examining the parties' prior dealings simply because this factor is not explicitly stated as a consideration in the final rule. As noted in the SNPRM, it would be impossible for the Commission to predict every situation. As such, maintaining the flexibility of a case-by-case determination in these situations remains the Commission's best path.

(c) Cargo perishability as a nonbinding consideration in evaluating unreasonable conduct under §§ 542.1 (d) and (g).

Issue: The Retail Industry Leaders Association (RILA) recommends adding whether the goods at issue are perishable as a non-binding consideration when evaluating whether carrier conduct is unreasonable under §§ 542.1(d) and (g) of the final rule. [ 109 ] This would include goods such as food and medical products. Citing the SNPRM's preamble, RILA noted that the Commission recognized that the goods' perishability could be a factor in determining unreasonable conduct but decided not to put specific time limits on these, opting instead for analyzing them on a case-by-case basis. [ 110 ] RILA argued that perishability is a factor that has a bearing on the reasonableness analysis in specific circumstances, thereby requiring expedited decision-making on cargo movement in those cases. As a result, RILA argued that the Commission should include perishability as a factor in the regulatory text.

Similarly, the International Dairy Foods Association (IDFA) argued that the Commission should add the consideration of whether the goods are perishable to the list of considerations of § 542.1(d), and also cites to the same SNPRM language that RILA cited. [ 111 ] IDFA argued that the longer it takes for perishable goods to reach their ultimate destination, the less valuable those goods become, as shelf life dwindles and eventually expires. Such goods are also more expensive to maintain in storage than most non-perishable goods. As a result, IDFA argued that the Commission should insert perishability into the list of non-binding considerations to be evaluated “as appropriate” as part of its “case-by-case approach” to determining whether the conduct of an ocean common carrier is unreasonable.

FMC response: The Commission declines to make this change. Consistent with the approach articulated in the SNPRM, the Commission will continue to make decisions on a case-by-case basis. The perishability of the goods, and the time pressure that this adds to getting the goods to their final destination, can remain one factor that the Commission may examine in the course of deciding each case that comes before it. This allows the Commission to retain flexibility in its decision-making, while also examining the totality of the circumstances in each case.

(d) Safety and the carriage of hazardous or dangerous goods.

Issue: Some VOCCs argue that the rule should account for considerations within the vessel operator's control that also serve legitimate purposes, such as safety. ZIM Integrated Shipping Services (ZIM) argued that refusing to accept and carry a particular class of Dangerous Goods because of a prior commitment to carry incompatible cargoes or the absence of equipment necessary for those cargoes are both elements that fall within a carrier's control. ZIM also argued that a carrier's calculation of vessel stability or compliance with safety regulations may require refusal to load a consignment, and that each of these decisions should be presumed to be reasonable. [ 112 ] Similarly, CMA CGM (America) LLC argued that it is not viable for carriers to offer services to customers who present risks such as mis-declaring cargo or improperly packaging hazardous cargo, because it could result in violations of regulatory requirements and significant safety risks for vessels, crew, and cargo. Rather, such circumstances, present valid customer-centric considerations that are entirely reasonable. [ 113 ]

On the other side of the argument, another commenter, whose members produce and export a wide variety of chemicals, polymers, and related products, asks the Commission to add the consideration of whether the goods are properly tendered hazardous cargo to §§ 542.1(d) and 542.1(g). [ 114 ] These commenters argue that including this factor in the list of non-binding considerations would be an appropriate part of the Commission's case by-case approach to determining whether an ocean common carrier's conduct is unreasonable, and would act as a deterrent against carriers that unreasonably refuse to transport such cargo.

FMC response: The definition of “transportation factors” in § 542.1(b) includes vessel safety. A carrier can reasonably refuse hazardous cargo if there is a legitimate safety concern. This includes there being a real safety risk presented by the specific cargo load on a particular vessel (in particular weather conditions, for example). However, in accordance with 46 U.S.C. 41104(a) (4)(B) and (5), a carrier cannot categorically deny all hazardous materials.

(e) Carriers must be able to meet their obligations under minimum quantity commitments.

Issue: OOCL USA, Inc. (OOCL) argued that as part of the service contract negotiation, the parties agree to a minimum quantity commitment. [ 115 ] This is a commitment from the carriers to support and fulfill the agreement—with an understanding that the shipping party operates under the same consideration. OOCL argued that in cases where contracts are implemented and shipments cover the entire period of the contracts, carriers need to ensure space is available to allow the carrier to fulfill its obligation. To this end, carriers ensure that an allocation is reserved to protects carriers' ability to support both U.S. and foreign exporters. OOCL argued that this could mean that space appears to be available when a shipper tries to book cargo, but the carrier may not actually have that space available as part of its legal obligation under its contractual agreement. OOCL argued that if the carrier undermines this legal obligation it could be subject to complaints before the Commission, as well as legal action related to breach of contract, but that there is nothing in the SNPRM that indicates how the Commission would classify this situation if a complaint were raised.

FMC response: This rulemaking is not intended to interfere with the parties' contractual obligations. If a minimum quantity commitment pursuant to a service contract is a factor in a carrier's decision to allocate vessel or cargo space, the carrier may raise that argument before the Commission if a complaint is filed. The Commission may then consider this factor in deciding the case. As noted in the NPRM and SNPRM, the Commission will consider these cases on a case-by-case basis, and we continue to adhere to that position in this final rule.

(f) Carriers must be able to consider a number of factors when accepting cargo bookings.

Issue: OOCL argued that vessel space is not the only factor in a carrier's decision to accept a cargo booking, and that many other factors play a role in the decision. One example that OOCL noted is if a customer were looking to move cargo to a port that was not directly serviced by the ocean common carrier, there may be limitations or gaps in services between the carrier's port of discharge and the port to which the customer wants its cargo delivered even if the carrier has adequate space aboard the intended vessel. OOCL also argued that most carriers look at “round trip” movement of cargo to ensure effective support of all customers in moving cargo. [ 116 ]

FMC response: This rulemaking is not intended to cover every factor that affects the ocean borne carriage of goods. The examples of unreasonable conduct listed in the rule are just that—examples. In examining complaints of unreasonable refusals to deal, the Commission will be looking at the totality of the circumstances surrounding a complaint on a case-by-case basis.

(g) Carrier retaliation as a factor in evaluating unreasonable conduct under §§ 542.1(d) and (g).

Issue: In a joint comment submitted by the American Chemistry Council (ACC), the National Association of Manufacturers (NAM), and the American Association of Exporters and Importers (AAEI), these entities argue that the Commission should amend §§ 542.1(d) and (g) to take into account whether the carrier's conduct was preceded by the shipper raising concerns about a carrier's performance on a contract. [ 117 ] ACC, NAM and AAEI argue that, based on the circumstances of a particular case, the Commission may be able to infer from the nature and timing of a carrier's conduct that there is a link between the shipper communicating their concerns and the alleged unreasonable conduct by the carrier.

FMC response: The Commission declines to make this change. The timing of the conduct may not, by itself, indicate that it is unreasonable. Instead, the Commission would need to examine the timing of the conduct in the context of the rest of the factors presented by the case to determine whether it contributes to a determination that the carrier's conduct was unreasonable.

Issue: The American Cotton Shippers Association (ACSA) argued that the rule should expressly state that excluding certain classes or types of cargo, such as a specific type of agricultural commodity, may constitute an unreasonable refusal to deal or negotiate in the absence of a demonstration that such refusal is reasonable. [ 118 ] The ACSA believes this should apply regardless of whether the VOCC's conduct is at the negotiation stage or the execution stage, and that it should apply even where other U.S. exports may be accepted by the carrier. The ACSA also stated that the Commission should consider whether such categorial exclusions constitute “unfair or unjustly discriminatory methods.”

FMC response: Sections 41104(a)(4)(B) and 41104(a)(5) of title 46 of the United States Code prohibit common carriers from engaging in any unfair or unjustly discriminatory practice regarding cargo classification. This includes refusing to carry certain classes of goods, such as agricultural goods. Additionally, as noted in the SNPRM, the Commission will address the statutory requirement in section 7(c) of OSRA 2022 to complete a rulemaking defining unfair or unjustly discriminatory methods in a separate rulemaking.

(a) Whether blank sailings are commercially reasonable.

Issue: MSC requested that the Commission provide clarification as to whether blank sailings are commercially reasonable, and to update the text of § 542.1(c)(2) accordingly. [ 119 ]

FMC response: The Commission declines to make this change. While there may be instances in which legitimate transportation factors necessitate a blank sailing, the Commission is unwilling to make a general finding that blank sailings will always be reasonable in every single case. Instead, the Commission will adhere to deciding reasonableness on the case-by-case basis put forth in both the NPRM and SNPRM.

(b) Advance notice.

Issue: MSC Mediterranean Shipping Company (USA) Inc. (MSC) argued that the Commission's use of lack of advance notice or insufficient advance notice as an example of unreasonable conduct under 46 U.S.C. 41104(a)(3) is an improper attempt to rewrite service Start Printed Page 59660 contracts and should be withdrawn. [ 120 ] MSC agrees with the Commission's statement, in the preamble of the SNPRM, that blank sailings are reasonable when they are based upon decreased demand, port congestion, weather, force majeure, vessel mechanical failure, or changes in service by a vessel sharing partner. MSC argued, however, that the Commission's example of “blank sailing or schedule changes with no advance notice or with insufficient advance notice” as an example of unreasonable conduct under 46 U.S.C 41104(a)(3) goes against the standard of commercial reasonableness. MSC argued that in most cases, a service contract or a carrier's tariff offering does not guarantee that a booking will be loaded on a particular ship or sailing and it is therefore reasonable not to give notice that a given container will not go on a given vessel. As a result, MSC argued that the Commission's proposal amounts to it rewriting the service contract or the carrier's tariff, and the Commission's rewrite is asymmetrical because it provides strict liability against carriers but no corresponding responsibility on the part of shippers or remedy for carriers. Lastly, MSC argued that if the Commission implements the rule as proposed, it must explain what provisions of the Shipping Act authorizes it to place Shipping Act liability on a carrier whenever it misses a scheduled port call without giving “sufficient,” but undefined, notice. [ 121 ] World Shipping Council (WSC) also objects to this advance notice provision for the same reasons. [ 122 ]

Similarly, OOCL (USA) Inc. (OOCL) argued against blank sailings being an example of an unreasonable refusal to deal. [ 123 ] OOCL stated that it is inconceivable that a business does not have the ability to make best use of its assets to ensure service continuity and capability to supply services based on demand. OOCL further noted that there is no definition as to what would be construed as lack of advance notice or insufficient advance notice, and therefore argued that this provision should be removed. OOCL also argued that even under service contract terms, there is no guarantee made that cargo will be shipped on any specific vessel—only that the carrier will commit to shipping its minimum quantity commitment (MQC) within the period of the contract. Similarly, OOCL argued that the Bill of Lading's terms also provide that there is no guarantee that cargo will ship on any specific vessel, and that while the company tries to ensure that all cargo is loaded onto the intended and booked vessel, extenuating issues outside of the carrier's control could impact that capability. Lastly, OOCL stated that, in all cases where blank sailings are involved, OOCL always offers alternative options to accommodate the shipper's requirements and there is no attempt to refuse to deal.

FMC response: The Commission declines to remove lack of or insufficient advance notice of blank sailings or schedule changes as a non-binding example of unreasonable conduct. Contrary to OOCL's comments, blank sailings themselves are not being deemed unreasonable here; it is the lack of advance notice or insufficient notice that is relevant to the reasonableness analysis. The Commission recognizes that blank sailings or schedule changes may be reasonable depending on the circumstances, but is of the opinion that the lack of adequate notice cannot be justified by legitimate transportation factors. Carriers' ability to communicate with its customers is not hindered by the type of events that might cause a blank sailing or a schedule change. Shippers are impacted by these changes and deserve notice when they take place in order to make their own business decisions regarding their cargo. The Commission also declines to specifically define how much notice is required—that, too, depends on the circumstances, including when the carrier itself determines that a blank sailing or schedule change is necessary, and how much time elapses between that determination and the notice it gives the shippers. Whether the carrier offers alternative options to accommodate the shipper's requirements when a blank sailing occurs, as OOCL stated it does, will be another factor that the Commission can consider when examining a refusal to deal case in front of it.

The Commission did not receive any negative comments on this specific section of the rule. As such, we are adopting the language from the SNPRM in the final rule.

Issue: Caribbean Shipowners' Association, FMC Agreement No. 010979/Central America Discussion Agreement, FMC Agreement No. 011075 (the “Agreements”) suggested that the Commission clarify what types of events VOCCs need to notify or alert shippers with confirmed bookings of in 46 CFR 542.1(e)(3) . [ 124 ] In addition, the National Industrial Transportation League (NITL) suggested that Commission add the word “timely” before the phrase “alert or notify shippers.”  [ 125 ] NITL argued that this change is necessary because shippers need adequate notice from ocean carriers so they can ship on time, and that giving a shipper a booking confirmation one day before the vessel sails is akin to a constructive refusal to provide cargo space. [ 126 ]

FMC response: The Commission has added language to 46 CFR 541.1(e)(3) to clarify the paragraph. This provision now reads: “failing to alert or notify shippers with confirmed bookings of any other changes to the sailing that will affect when their cargo arrives at its destination port.” The Commission declines to add the word “timely,” as what it means to be “timely” can vary according to circumstances and must be evaluated on a case-by-case basis. Paragraph (e)(3) is a non-binding example. Exclusion of the word “timely” does not preclude complainants from presenting evidence that notice was not adequate, including for reasons of timing.

(a) Removing insufficient time for vessel loading as an example of unreasonable ocean carrier conduct from the rule.

Issue: MSC Mediterranean Shipping Company (USA) Inc. (MSC) argued that the Commission's use of scheduling insufficient time for vessel loading so that cargo is constructively refused as a non-binding example of unreasonable conduct in § 542.1(e)(4) is improperly directed at ocean carriers. MSC argued that vessel loading times are controlled by maritime terminal operations and ports, not ocean carriers, and that as such, the Commission should withdraw this provision. [ 127 ] Similarly, OOCL (USA) Inc. (OOCL) argued that scheduling of “insufficient time” for vessel loading, is not a valid carrier issue. OOCL stated that in almost all cases where vessels do not allow “sufficient” time, it is because of port operations or port requirements that determine when vessels can berth and when they need to vacate that berth. OOCL argued that carriers do not purposely depart early and leave cargo Start Printed Page 59661 behind, and that when this happens it is because the port has asked the vessel operator to leave. As such, OOCL also requested that this provision be removed. [ 128 ] World Shipping Council (WSC) made the same arguments regarding this provision. [ 129 ]

FMC response: The Commission declines to remove this provision from the rule. While factors such as port congestion may play a role in when a vessel gets a berth and can begin loading and unloading containers, it is the VOCC that determines its initial schedule of which ports it will visit on which days. Thus, the VOCC sets a certain amount of time in each port, a decision that contributes to whether there is sufficient time to load cargo onto the vessel. As such, it remains the VOCC's responsibility in the first instance to schedule sufficient time to load cargo. Such considerations can be reviewed by the Commission as “other factors relevant in determining whether there was a refusal” under 46 CFR 542.1(d)(4) and (g)(4) .

(b) Distinguishing between vessel loading time and cargo loading time.

Issue: The National Industrial Transportation League (NITL) argued that the Commission should replace the words “vessel loading” in § 542.1(e)(4) with “container loading and tender of cargo.”  [ 130 ] NITL expressed concern that this subsection was focused on vessel loading, as vessel loading is what occurs when the ocean carrier loads the vessel. According to NITL, container loading is what happens when shippers load the container at their facility and then tender the container to the carrier. Shippers need sufficient time to load and transport containers to the port where they will be loaded onto the vessels.

Similarly, BassTech International (BassTech) argued that § 542.1(e)(4) should be amended by inserting “cargo tendering or” between “time for” and “vessel loading.” BassTech argued that when shippers refer to the impediment of “inadequate loading times,” they are usually referring to the limited time provided by the ocean common carriers for the shipper to collect an empty container, bring it to their facility to load the container with their cargo, and then tender the laden container to the carrier. [ 131 ] BassTech noted that the “insufficient time” of § 542.1(e)(4) is meant to address the problematic timelines surrounding cargo receiving dates that inhibit shippers from tendering laden containers to the carriers, and suggests the additional language at issue to identify cargo loading time as distinct from vessel loading time.

FMC response: In accordance with these comments, the Commission has added the phrase “cargo tendering” to § 542.1(e)(4), such that this subsection will now read “scheduling insufficient time for cargo tendering or vessel loading so that cargo is constructively refused.” As BassTech noted, § 542.1(e) focuses on conduct by the VOCC that is unreasonable with respect to cargo accommodations and § 542.1(e)(4) looks to ensure sufficient time for loading laden containers onto the vessel. Adding the phrase “cargo tendering,” while also retaining the phrase “vessel loading”, ensures sufficient time for shippers to load and return their containers to the vessel for loading instead of limiting this provision to circumstances where the carrier may be the one loading the cargo onto the vessel.

The Retail Industry Leaders Association (RILA) and the International Dairy Foods Association (IDFA) supported the inclusion of the provision of inaccurate or unreliable vessel information as a non-binding example of unreasonable conduct under 46 U.S.C. 41104(a)(3) . Both commenters noted that the American Society for Testing and Materials (ASTM International) and other organizations who develop standards are working to develop standards on the sharing and use of digital information in the supply chain. RILA also noted the related work of Commissioner Bentzel with the Maritime Transportation Data Initiative. [ 132 ]

The Commission has decided to retain this factor as part of its analysis.

Issue: The International Dairy Foods Association (IDFA) supported the inclusion of the concept of systematically excluding exports in providing cargo space accommodations section. IDFA said that in its experience, “de facto exclusionary tactics are more likely to be employed by carriers than employing a categorical prohibition, which would be easier to spot.”  [ 133 ]

Conversely, CMA CGM argued that carriers must have discretion to carry, or not carry, any particular product. [ 134 ] The company argued that it should not be required to export categories of goods that go against its policies, and that it should be able to exercise independent business discretion to refuse certain shipments without concerns that these decisions will be deemed unreasonable.

FMC response: Common carriers are prohibited from unfairly or unjustly discriminating against a commodity group or type of shipment under 46 U.S.C. 41104(a)(4)(B) and (a)(5) . The example in subsection (e)(6) was not intended to mirror the prohibitions in these provisions. Rather, the example is intended to reference the wholesale refusal by a VOCC of all exports. This confusion appears to result from our use of “categorical” in the example. Our use of the term in this example was not intended to refer to categories of commodities, but rather to the de facto, absolute exclusion of all exports by a VOCC. In response to this question, FMC has revised the example to read: “The de facto, absolute, or systematic exclusion of exports in providing cargo space accommodations.” The Commission notes that it may consider an unfair or unjustly discriminatory practice, such as the unfair or unjust discrimination against a commodity group, as “any other factor” in accordance with 46 CFR 542.1(d)(4) and (g)(4) in determining whether there was an unreasonable refusal under 46 U.S.C. 41104(a)(3) or (a)(10) .

Issue: Caribbean Shipowners' Association, FMC Agreement No. 010979 and Central America Discussion Agreement, FMC Agreement No. 011075 (the Agreements”) objected to the proposed § 542.1(e)(7) because it is not a true example. [ 135 ] They said that it would instead be preferrable to state the intent that this is a non-exhaustive list more explicitly. [ 136 ]

FMC response: In response to these comments, the Commission has removed proposed § 542.1(e)(7) from the final rule. The commenter correctly pointed out that this subsection of the regulatory text did not actually provide an example of unreasonable conduct. No additional revisions were made as the header for the paragraph clearly designates these as “non-binding examples”. Start Printed Page 59662

Issue: The International Dairy Foods Association (IDFA) proposed the inclusion of an additional example in paragraph (e): “Not providing contracted-for cargo space accommodations where a shipper has raised frequent and urgent concerns with the carrier's documented failure to perform on the contract and/or threatened to litigate against the carrier for alleged non-performance and/or switch service providers due to the carrier's failure to perform.”  [ 137 ] According to the commenter, it is unlikely that there will be future situations where retaliatory conduct is documented by carriers, so the Commission needs to focus on retaliation through the lens of unreasonable conduct “whether one can prove retaliation through incriminating email traffic or not”. [ 138 ]

FMC response: FMC declines to add this as a specific example in the regulation. However, we do note that this is an important issue and is something that can be considered by the agency under § 542.1(d)(4). FMC emphasizes the lists of examples in the rules are non-binding examples.

In response to the SNPRM, the Commission received no comments regarding § 541.2(f), which sets out the elements necessary to establish a successful private party or enforcement claim under 46 U.S.C. 41104(a)(10) . These elements will be included in the final rule as proposed.

Many of the comments the Commission received regarding the non-binding considerations when evaluating unreasonable conduct explicitly stated that they applied to both sections 542.1(d) and 541.2(g). The comments that did not cite to either section contained arguments applicable to both sections. As a result, all of these comments are analyzed above, in the section for § 542.1(d).

(a) Commission's authority to promulgate this requirement.

Issue: Mediterranean Shipping Company (USA) Inc. (MSC) and World Shipping Council (WSC) argue that the Commission has no authority to regulate prices, and the proposal to use “so far above current market rates” as a standard is vague and unworkable. [ 139 ] OOCL (USA) Inc. (OOCL) also argued that the Commission does not regulate rates, and that this provision eliminates the carrier's and shipper's ability to negotiate, which is part of the basis of a free market economy. [ 140 ] OOCL further argued that this provision is vague and provides no basis to determine whether the quoted rates exceed the required rate from the customer or the market, which is problematic in a market where rates fluctuate wildly due to external forces. [ 141 ] The Pacific Merchant Shipping Association (PMSA) also argued that the Commission has no authority to set rates or determine whether a rate is “so high” that it is unreasonable. [ 142 ] PMSA further noted that the Commission has not explained how it would apply any such analysis, which it is required to do. [ 143 ]

FMC response: In response, the Commission emphasizes that this is a non-binding example rather than a bright line rule. In addition, the Commission is not regulating or setting specific rates with this provision. It is simply providing a comparison point between rates a carrier offers in negotiation, and rates that the rest of the market is charging for that space. Contrary to the commenters' assertions, the Commission is letting the market work here because it is allowing the market to set the rates and is then examining whether the rates that any carrier puts forth in negotiations is so far above those market rates as to be unreasonable. While the Commission declines to set a bright line to determine how far above the market rate is unreasonable, it disagrees with the commenters that this makes for a vague rule. Some leeway in prices offered during negotiations is permissible and even encouraged by the market itself. As such, the Commission will retain this factor as written in the final rule. With regards to the assertions of vagueness, see the discussion concerning the definition of “unreasonable”.

(b) Shipper's significantly below-market rate proposal.

Issue: Caribbean Shipowners' Association, FMC Agreement No. 010979/Central America Discussion Agreement, FMC Agreement No. 011075 argued that proposed § 542.1(h)(1) should be revised to make clear that a carrier does not engage in unreasonable conduct when it rejects a customer proposal that is so low that it cannot be considered a real offer or an attempt at good faith negotiations. [ 144 ]

FMC response: The FMC declines to make the requested change. In parallel to the language of 46 U.S.C. 41104 , the focus on the definition of reasonableness in this rule, and the related non-binding examples, is on the conduct of the ocean common carrier, rather than the conduct of, or impact on, the shipper. However, the rule does not prohibit the Commission from considering any relevant evidence.

The Commission received no comments on this regulatory text. As such, the Commission adopts this language without further changes in the final rule. However, for the same reasons discussed in relation to subsection (e)(6), the Commission has revised the example to read: “The de facto, absolute, or systematic exclusion of exports in providing vessel space accommodations.”

Issue: Caribbean Shipowners' Association, FMC Agreement No. 010979 and Central America Discussion Agreement, FMC Agreement No. 011075 (the “Agreements”) objected to the proposed § 542.1(h)(3) because it is not a true example. [ 145 ] They said that it would instead be preferrable to state the intent that this is a non-exhaustive list more explicitly.

FMC response: In response to this comment the Commission has removed proposed § 542.1(h)(3) from the final rule. The commenter correctly pointed out that this subsection of the regulatory text did not actually provide an example. No additional revisions were made as the header for the paragraph clearly designates these as “non-binding examples”. Start Printed Page 59663

Issue: MSC Mediterranean Shipping Company USA, Inc. (MSC) and World Shipping Council (WSC) requested that the Commission amend the regulatory text of paragraph (i) to include the SNPRM preamble's language that nothing in the rule is meant to restrict the ability of ocean common carriers to reposition empty containers. [ 146 ]

FMC response: FMC has amended the regulatory text as requested. However, as noted in the discussion above regarding the definition of “sweeper vessel,” the Commission's position is that an ocean common carrier carrying even a single container of cargo should meet the same standards under 46 U.S.C. 41104(a) (3) and (10) as a vessel fully loaded with containerized cargo. Therefore, the Commission has also amended the regulatory text to make it clear that the designation of a sweeper is subject to Commission review to determine whether the designation results in an unreasonable refusal of ocean carriage services.

Issue: The Commission stated in the SNPRM that documented export policies filed by ocean common carriers would remain confidential. [ 147 ] Some commenters argued that instead these reports should be made public, either in whole or in a redacted version. [ 148 ] Other commenters stated that if documented export policies are required, the regulations should state expressly that such policies are confidential and exempt from disclosure under the Freedom of Information Act. [ 149 ]

FMC response: The documented export policies filed with the Commission shall remain confidential in accordance with 46 U.S.C. 40306 . With certain limited exceptions, section 40306 prohibits the disclosure of information and documents filed with the FMC. In response to comments received, the Commission has amended the regulatory text to clearly state that documented export policies and information therein is not disclosable, in whole or in part, including in response to requests under the Freedom of Information Act. This provision is located at 46 CFR 542.2(j)(3) in the final rule. As noted in the SNPRM, aggregate data may be provided by the Commission in annual reports submitted to Congress or compiled for other purposes but will not reveal confidential information provided by or about individual carriers.

Issue: Several commenters asserted that there is no authority in OSRA 2022 or elsewhere in the Shipping Act to impose a requirement on ocean common carriers to file a documented export policy with the FMC, or for the FMC to use such a document as a factor in determining whether an ocean common carrier has acted unreasonably. [ 150 ] Commenters asserted that 46 U.S.C. 40104 only provides FMC authority to collect information or an accounting of events that have already taken place and does not authorize “the Commission to direct the development and submission of a forward-looking policy or strategy aiming document.”  [ 151 ]

Commenters also asserted that the FMC's active involvement in the day to day operations of ocean carriers as contemplated by the rule contravenes the Shipping Act's stated purpose to establish a non-discriminatory regulatory process for common carriage of goods by water in the foreign commerce of the United Sates with a minimum of government intervention and regulatory costs ( 46 U.S.C. 40101(1) ). [ 152 ]

World Shipping Council (WSC) asserted that the proposed requirement for ocean common carriers to file documented export policies was in violation of the Paperwork Reduction Act (PRA), 44 U.S.C. 3501-3521 , “because the Commission has failed to show how its proposal to require an export policy will have any utility to the agency, either in benchmarking unreasonable action, or for use in litigation.”  [ 153 ]

Finally, one commenter argued that the regulation, as proposed, is too broad and should be more narrowly tailored to reduce unnecessary burden. [ 154 ] This commenter argued that not all carriers should be required to file a documented export policy because concerns about refusals to provide export cargo space does not apply to all trade routes. [ 155 ]

FMC response: Section 40104 of title 46 of the United States Code provides the FMC with clear authority to require ocean common carriers to file documented export policies as directed by this final rule. The statute unambiguously states on its face that the agency may require a common carrier to file with the Commission a periodical, special report, or memorandum of facts and transactions related to the business of the common carrier. [ 156 ] An ocean common carrier's general policies concerning their export operations are facts related to the business of the common carrier. Contrary to the commenters' assertions, the statute does not restrict the Commission to only gathering information about past actions. In accordance with 46 U.S.C. 40104(a)(3) , this rule is limited in scope to fulfill its objective and provides a reasonable period for respondents to respond based upon their capabilities and scope of the order. In accordance with 44 U.S.C. 3508 and implementing guidance from the Office of Management and Budget, the Commission has explained the purpose, need, and practical utility of the collection of this information. These reports are an important part of monitoring the industry for unreasonable behavior vis-á-vis exports. The information provided will help the Commission determine whether an ocean common carrier's conduct in a specific matter aligns with their general policies and whether the ocean common carrier thus acted reasonably. Requiring common carriers to submit this information does not involve the Commission in the day-to-day operations of ocean common carriers Start Printed Page 59664 and does not impose unnecessary or unreasonable burdens on carriers.

The commenter is correct that not all trade routes currently demonstrate the same concerns about refusals to provide export services on vessels departing from the United States. However, the shipping industry is a dynamic one that is constantly responding to changing conditions; as such, it is reasonable to assume that these conditions, which are present today on some routes, may present on different trade routes in the future. In drafting this rule, the Commission is considering not only present conditions, but those that may realistically develop in the future. Having this information from all carriers allows the Commission to monitor all trade routes and engage in enforcement actions as issues are identified in a particular route.

Issue: Two commenters suggested that the Commission should also require a documented import policy as import policies cannot be de-coupled from export policies. [ 157 ] In a similar vein, another commenter noted that the ocean transportation system is one continuous loop, with no separate import and export systems. [ 158 ] Other commenters, while they do not advocate for an import policy, would not object to the requirement. [ 159 ]

FMC response: At this time, the Commission declines to mandate that ocean common carriers file a documented import policy. While there have been reports of restricted access to equipment and vessel capacity for U.S. importers, particularly in the Trans-Pacific market, there are few carriers who would need to rely on such a document to provide evidence that they intend to serve the U.S. markets when their ships are already visiting U.S. ports. [ 160 ] As noted in the SNPRM, if an ocean common carrier wants to provide an import policy to help establish how a refusal is reasonable, the Commission would consider that information. [ 161 ]

(a) Deviating from a Documented Export Policy.

Issue: One commenter said that if an export policy is required to be filed, the Commission should explicitly recognize that a deviation from that policy is not necessarily unreasonable or a violation of the Shipping Act. [ 162 ] The mere following of a documented export policy by a carrier should not justify the carrier's refusal to accept cargo on a vessel. [ 163 ] Another commenter said that the text should be amended to add “with deviations as may be appropriate” to enable efficient movement of export cargo. [ 164 ]

FMC response: In response to these comments, the Commission has amended § 542.1(j) to state that the ocean common carrier must file the document with the Commission, not that the ocean common carrier must follow the document. This change aligns with the Commission's intent, as articulated in § 542.1 (d)(1) and (g)(1) that whether the ocean common carrier followed a documented export policy is one, non-binding consideration that the Commission may consider in determining whether unreasonable conduct has occurred.

(b) Timely movement of cargo.

Issue: One commenter suggested that the text of the export policy considerations could be clarified by requiring “the timely and efficient movement of export cargo.”  [ 165 ]

FMC response: The Commission agrees and has incorporated the suggestion into the regulatory text. The original proposed language was written to mirror 46 U.S.C. 40104 , which includes the descriptor “efficient”, but not “timely”. While section 40104 does not include “timely”, its inclusion here comports with the goals of the OSRA 2022 generally. Many exports, particularly agricultural exports, must be loaded and transported to their destinations in a timely manner in order for exporters to fulfill contract obligations.

(c) Stagnant document in a dynamic market.

Issue: Some commenters expressed concern with the documented export policy being a stagnant document when the commercial reality is that an ocean common carrier's export strategy is constantly evolving, adjusting to market realities. Commenters also said that being bound to a stagnant policy would stifle innovation and negatively impact customers. [ 166 ]

FMC response: The Commission acknowledged in the SNPRM that export strategies are constantly evolving as the nature of international trade changes. [ 167 ] For this reason the rule does not define an exhaustive list of items that must be included in an export policy, but instead identifies certain elements that would be helpful in determining reasonableness. [ 168 ] The documented export strategy is intended to be a long-term document, [ 169 ] and therefore the Commission is only requiring that it be filed once a year. If an ocean common carrier, however, believes that it is necessary to do so, they may file an amended or revised report anytime throughout the year. The Commission may also revisit, in the future, whether it should require documented export policy reports to be filed more frequently.

(d) Narrowly tailoring the requirements of the documented export policy.

Issue: One commenter said that § 542.1(j)(1) appears to be overly broad, requiring information not essential to implementation of the rule. [ 170 ]

FMC response: FMC disagrees with the commenter's assertion that the requirements in § 542.1(j)(1) are overly broad. FMC has determined, based on its subject-matter expertise and role as regulator, the key information necessary for the Commission to have to monitor the industry for unreasonable conduct. According to comments received on the NPRM, many of the elements of the documented export policy are elements that ocean common carriers already include or monitor as part of export strategies. As such, providing this information to the Commission should not pose an unreasonable burden on VOCCs. Furthermore, as noted elsewhere in this preamble, one reason the Commission is requiring the documented export policy is to determine the extent to which ocean common carriers comply with their own policies. To the extent that a VOCC's conduct diverges from its own policies, the Commission may take that into account in determining whether an unreasonable refusal has taken place. Start Printed Page 59665

(a) Clarifying the export policy to show that it covers exports from the United States.

Issue: One commenter argued that the export policy requirement should add “U.S.” to show that the document is not intended to include a carrier's export policies and practices from other countries to the United States. [ 171 ]

FMC response: The Commission declines to adopt this change. The definition of documented export policy in paragraph (b) makes clear that this document pertains to practices and procedures for U.S. outbound services.

(b) Requiring the suggested elements of the documented export policy.

Issue: The American Chemistry Council, National Association of Manufacturers and American Association of Exporters and Importers argued that the regulatory text should be revised to require carriers to submit the information contained in the proposed § 542.1(j)(1)(i)-(ii). [ 172 ]

FMC response: The Commission declines to make this change. As discussed in the SNPRM, the Commission is aware that export strategies are constantly evolving as the nature of international trade changes and for this reason has not defined an exhaustive list of items that must be included in an export policy, but in addition to certain mandatory elements, has identified certain elements that would be helpful in determining reasonableness.

Issue: MSC Mediterranean Shipping Company (USA) Inc. (MSC) argued that the Commission's intent with respect to the respective burdens of the parties in the adjudication process is clear, but that the wording of the regulation is not. Citing the language of the SNPRM, MSC stated the Commission made clear in the preamble that the burden that shifts to the carrier is the burden of production, not the ultimate burden of persuasion. In order to make the final rule consistent with the Commission's intent and with the header in § 542.1(k), MSC requested that the Commission insert the words “of production” in § 542.2(k)(2) between “burden” and “shifts.”  [ 173 ] World Shipping Council (WSC) made the same arguments. [ 174 ]

FMC response: The Commission declines to make this change. The burden-shifting regime was discussed at length in the SNPRM. [ 175 ] After reexamining this discussion in light of these comments, the Commission believes it remains a strong system whose goals and parameters were well-expressed in the SNPRM. The shifting of the burden of production, whether that uses the words “production of evidence,” as the SNPRM does, or the “burden of proof” for which MSC and WSC advocate, has the same meaning in this context. Changing the language will not clarify or change the process.

Issue: The North American Meat Institute (NAMI) cautions against the adoption of § 542.1(k)(3), which places the ultimate burden of persuasion on the complainant or the Commission's Bureau of Enforcement, Investigations, and Compliance. NAMI believes that it is clear that a complainant would have to set forth a prima facie case of a violation and supports the burden shift to the ocean common carrier to justify its actions were reasonable. Nonetheless, NAMI remains concerned that the language specifying the ultimate burden of persuasion will preclude small- and medium-sized shippers from availing themselves of the protections provided in this rule. [ 176 ]

FMC response: The Commission declines to make this change. As noted in the SNPRM, the process spelled out in § 541.2(l) is the process that is followed in cases arising under the Administrative Procedure Act (APA). While the Commission recognizes and appreciates that this process might present more of a burden for small- and medium-sized shippers than for large shippers, it also noted that the Commission's Bureau of Enforcement, Investigations, and Compliance may also bring a case for a violation under this section. As such, there are multiple avenues for complaints to be brought before the Commission under this section.

(a) Meaning of “prima facie case” is vague.

Issue: MSC Mediterranean Shipping Company (USA) Inc. (MSC) argued that the use of “prima facie case” is so vague that any conduct could fit into the Commission's definition of unreasonableness. MSC argued that the Commission should revise the description of when a shipper or the Bureau of Enforcement, Investigations, and Compliance (BEIC) has set forth a prima facie case to provide clarity and regulatory certainty to carriers, shippers, and finders of fact as to what actions the Commission believes constitute reasonable or unreasonable behavior.

MSC  [ 177 ] and World Shipping Council (WSC)  [ 178 ] also argue that the Commission should revise the text to make clear that the standard for reasonable behavior is one of commercial reasonableness, as consistent with Commission's precedent.

FMC response: The Commission declines to make these changes. The term “unreasonable” is defined in § 542.1(b). Sections 542.1(c) and (f) set forth the discrete elements necessary to establish successful claims under 46 U.S.C. 41104(a)(3) and (a)(10) , respectively. Sections 542.1(e) and (h) provide examples of unreasonable conduct and sections 542.1(d) and (h) list considerations when evaluating unreasonable conduct. These sections provide significant insight into what the Commission believes constitutes unreasonable conduct, as well as a clear roadmap to establishing a prima facie case. The Commission's reasons for not incorporating the “commercial reasonableness” standard for which MSC advocates has been discussed in earlier sections of this preamble.

(b) Carrier response to a prima facie claim.

Issue: Maersk A/S (Maersk) argued that the Commission should consider that, if in response to a shipper's prime facie case, the ocean carrier provides evidence that the ocean carrier either provided an opportunity for a two-way commitment (with respect to 46 U.S.C. 41104(a)(10) ) or entered into a contract with a two-way commitment (with respect to 46 U.S.C. 41104(a)(3) ), then that fact in itself should shift the burden of persuasion to the shipper. In this scenario, Maersk argued that it should then be up to the shipper to make a case as to why its refusal was unreasonable in light of opportunities it failed to take or contractual remedies that it failed to pursue. [ 179 ]

FMC response: The Commission declines to make this change, as it adds an extra, and unnecessary, step to the process. If it allows this step, the Start Printed Page 59666 Commission can readily predict a scenario where the burden continually shifts back and forth, allowing each party to present an ever-increasing amount of evidence. This is contrary to the streamlined process that the Commission has proposed. Under § 542.1(l), the ocean common carrier may present evidence it deems necessary to justify its actions as reasonable, including evidence of a two-way commitment and evidence of opportunities or contractual remedies it believes the shipper failed to take. In accordance with this process, and mindful of the burden of persuasion that remains in § 542.1(l)(3), the Commission will consider this evidence when formulating its decision in each case.

(c) Documents created by carriers.

Issue: Malmo Limited (Malmo) argued that carriers' self-created documents supporting its basis for refusing to deal or negotiate should be reviewed with skepticism, as giving them weight would encourage carriers to document its pretexts and not the true reasons for cutting off a shipper. Malmo stated that the last thing the Commission should do is provide a roadmap for carriers on how to avoid liability by creating pretext evidence “to justify that its actions were reasonable.” As an example, Malmo stated that a carrier, knowing that it planned to refuse to deal or negotiate with a shipper, could create evidence by sending internal emails with self-serving pretexts, or communicating to the shipper supposed legitimate reasons for not dealing when, in reality, the carrier had no such justifications. As such, Malmo argued that these communications should be given less weight than a complainant's prima facie evidence establishing a violation. [ 180 ]

FMC response: In creating the standards established in § 542.1(l), the Commission has been mindful of creating a scheme that is not weighted towards one side or the other. The system must allow a carrier to present evidence on its own behalf to rebut a claim of unreasonable refusal to deal, and a presumption that carrier-created documents are pretexts would undermine that the fair approach of the final rule. The Commission will weigh all of the evidence presented and decide each case on a case-by-case basis.

Issue: Malmo Limited (Malmo) argued that an overlooked issue in the rule is the massive damage that an unreasonable refusal to deal or negotiate can inflict on a shipper. Malmo argued that this harm needs to be properly redressed by the Commission, and that when a carrier cuts off a shipper during negotiations, the last deal terms discussed should be held against the carrier when determining appropriate reparations. [ 181 ] In support of this, Malmo noted that carriers receive an advantage when refusing to deal in that they cause uncertainty with respect to the shipper's damages because the deal or negotiation often is not finalized in a written agreement before the unlawful refusal takes place. [ 182 ] Citing further Commission precedent and Supreme Court case law, Malmo argued that uncertainty caused by a carrier should not be held against the complainant. [ 183 ]

As such, Malmo argued that the rule should implement reparations that are not limited by the uncertainty caused by the timing of a carriers' unlawful conduct. Instead, reparations should be based on the last deal terms discussed by the parties before the illegal refusal to deal. If not implemented, the carriers will have a strong incentive to refuse to deal before final deal terms are fully executed. [ 184 ]

FMC response: The Commission declines to make this change. Violations under 46 U.S.C. 41104(a)(3) already carry the possibility of up to double reparations under 46 U.S.C. 41305(c) . The Commission will address the issue of penalties or reparations for refusal to deal in each case as necessary. The Commission recognizes that penalties for unreasonable refusal to deal may be appropriate, depending on the circumstances of each case. Given that the Commission is maintaining its posture on deciding each complaint on a case-by-case basis, however, the Commission declines to mandate penalties in the rule.

Issue: In the SNPRM, the Commission assumed that in those instances where a service contract already exists between an ocean common carrier and a shipper, a refusal to deal or negotiate would be addressed within the context of the provisions of the agreement and the remedies afforded when there is a breach of contract. Noting, however, that it is possible for a contract to be silent in such situations, the Commission requested comments identifying how those situations would be remedied. [ 185 ]

In response, BassTech International (BassTech) stated that while it is not impossible for a service contract to be silent on this issue, it seems odd that it would not address the remedies for failure of a party to honor their obligations, which is something that is typically addressed through liquidated damages. BassTech noted that this became problematic during the demand surge of recent years, because liquidated damages did little to remedy a shipper's inability to access space that had been committed under a service contract given the enormous increases in freight rates during that time. This dynamic made payment of liquidated damages less of a deterrent for the offender and less compensatory for the aggrieved. BassTech argued that while that situation could hardly have been predicted or written into a service contract, ocean common carriers are unlikely to agree to future contract provisions that allow regulations to prevail over specific contract terms. As a result, BassTech argued that, given shippers' inferior negotiating power with respect to carriers, it would help to have some guardrails to prevent pressure on shippers to agree to service contract terms that excuse the carrier from their regulatory obligations, such as refusal to deal. [ 186 ]

The National Industrial Transportation League (NITL) argued that a carrier should not be able to operate contrary to the Shipping Act notwithstanding the existence of a service contract. In other words, a shipper should not lose access to claims arising under the Shipping Act if a carrier may be in violation of the Act simply because it negotiated a contract with the carrier. [ 187 ] Similarly, the National Association of Chemical Distributors (NACD) argued that although contract breaches are reserved for the courts, under the Shipping Act, where a contract is silent on remedies and a carrier's conduct constitutes an unreasonable refusal to deal, both remedies should be available for an aggrieved shipper. [ 188 ]

By contrast, Caribbean Shipowners' Association, FMC Agreement No. 010979/Central America Discussion Agreement, FMC Agreement No. 011075 (the “Agreements”) argue that the Start Printed Page 59667 Commission fails to address the relationship between 46 U.S.C. 41104(a)(3) and 46 U.S.C. 40502(f) , the latter of which provides that the exclusive remedy for breach of a service contract is an action in an appropriate court. [ 189 ] The Agreements argued that under the proposed rule, if a carrier refuses to provide space to a customer with whom it has entered into a service contract, the carrier is potentially in violation of 41104(a)(3) as well as being in breach of a service contract. The Agreements state that if the rule is adopted as proposed, the line between Shipping Act claims and breach of contract claims will be blurred even further.

The National Customs Brokers & Forwarders Association of America, Inc. (NCBFAA) stated that its service contracts contain shortfall (or “dead freight”) provisions to penalize either the shipper or the ocean carrier for nonperformance of the service contract, as well as arbitration provisions to address any unresolved disputes. [ 190 ] NCBFAA noted, however, that shippers dealing with ocean carriers in these scenarios are typically obliged to accept any remedies offered and do not have any specific remedies or avenue for relief with respect to an ocean carrier's refusal to deal or negotiate with respect to vessel space accommodations. Given that service contracts do not specifically provide for disputes regarding vessel space, NCBFAA requested the Commission consider whether current regulations may be further revised to afford greater protections to shippers.

FMC response: The Commission's request for comments on this issue arose out of comments asking the Commission to strengthen the rule's protections against refusals to deal in the context of existing service contract relationships, as a way of addressing conduct that is already occurring in the industry. [ 191 ] Given that it seems possible for contracts to remain silent on remedies for refusal to deal, and that there are some situations where a contract's specified remedies do not have the intended effects of remedying the breach or deterring behavior, the Commission reiterates its position that regardless of contract status, an ocean common carrier may not effectively bar a shipper, including one without a service contract, from having direct access to ocean common carriage by unreasonably refusing to deal or negotiate the terms of such carriage. This is consistent with the position the Commission took in the SNPRM. [ 192 ] As also stated in the SNPRM, the Commission remains “[f]ully cognizant of the privilege that private parties may enter into their own service contracts,”  [ 193 ] and nothing in this rule prevents parties from entering service contracts.

Issue: Maersk A/S (Maersk) supported the Commission's objective of addressing systemic, chronic, or outlying ocean carrier policies that unreasonably restrict space, but opposes resetting the efficient commercial market for vessel space and equipment. [ 194 ] Maersk argued that the Commission needs to narrowly tailor this rule to target unusual positions that are contrary to traditional market practices—a good example of which is the SNPRM's example of an ocean carrier that only transports loaded imports, refuses all loaded exports, and uses its vessels departing U.S. ports solely to reposition empty containers. Maersk argued that if the Commission issues a final regulation that is too ambiguous and broad, it could jeopardize the market mechanisms that have, for decades, made containerization a boon for U.S. importers and exporters in terms of reduced transportation costs and diversity of services. Maersk opines that the final rule should not transform the Shipping Act into a loaded gun pointed at carriers for each difficult negotiation with individual customers about vessel space in a tight market. Maersk noted that no comments submitted to OSRA 2022's legislative record or this rule's proceedings identified shipper-ocean carrier contract practices as unreasonable and the root cause of shipper capacity problems.

FMC response: The Commission initiated this rulemaking for one of the same reasons that OSRA 2022 was passed: to counteract the specified problem in the market of American exporters being shut out of cargo accommodations and vessel space by carriers' refusal to deal. To this end, the SNPRM noted that “the focus of the definition of reasonableness, however, is on the ocean common carrier's conduct rather than the impact on the shipper.”  [ 195 ] This is a problem that had become chronic, systemic, and widespread. Through the extended process of an NPRM, SNPRM, and this final rule, the Commission has adjusted this rule so that it is as narrowly tailored as possible to address this issue. As such, the Commission disagrees with Maersk's assessment that this rule is a broadly construed attack on ocean common carriers.

Issue: International Federation of Freight Forwarders Associations (FIATA) recognizes that the Commission's focus for this rule is eliminating impediments to accessing space on vessels, but noted that many shippers, especially small and medium-sized enterprises (SMEs) or those exporting or importing cargo, often seek the services of specialized freight forwarders. FIATA argued that to uphold the intention of this rulemaking, the Commission should add “shippers and/or their authorized representatives” to the regulatory text to ensure that the authorized representatives of shippers, or a forwarder acting in their own name, such as an NVOCC, all have the same rights accorded to beneficial cargo owners (BCOs) to secure access to vessel and cargo space and related services defined in this rulemaking. [ 196 ]

FMC response: The Commission declines to make this change. First, as noted in the NPRM and expanded upon in the SNPRM, this rule does not apply to NVOCCs. [ 197 ] Secondly, as noted in response to other comments above, this rule focuses on the behavior of the ocean common carrier rather than shipper. Nothing in this rule prevents a freight forwarder from acting on behalf of a shipper or bringing a claim against a shipper for refusal to deal.

Issue: USA Maritime and the U.S. Department of Defense's United States Transportation Command both expressed concern that the SNPRM had not adequately accounted for U.S. cargo preference requirements. [ 198 ] Cargo preference is a framework of U.S. laws, regulations, and policies that require the use of U.S.-flag vessels in the movement of cargo that is owned, procured, furnished, or financed by the U.S. Government. [ 199 ] It also includes cargo that is being shipped under an Start Printed Page 59668 agreement of the U.S. Government, or as part of a Government program. [ 200 ]

FMC response: The Commission recognizes and appreciates the importance of this issue, and the importance of cargo preference, particularly to national security and U.S. military activities. However, the Commission cannot exempt preference cargo from Shipping Act requirements by this final rule. While 46 U.S.C. 40103 allows exemptions to the Shipping Act by Commission order or regulation, FMC regulations ( 46 CFR 502.92 ) require a formal petition to be filed with the Commission and notification in the Federal Register to give the opportunity for public comment. [ 201 ] The Commission is open to considering a petition for exemption for preference cargo filed in accordance with 46 CFR 502.92 .

This final rule describes how the Commission will consider private party adjudications and agency-initiated enforcement cases in which violations of 46 U.S.C. 41104(a)(3) and (a)(10) are alleged relating to unreasonable refusal to provide cargo space accommodations and/or refusals to deal by ocean common carriers. It considers the common carriage roots in the Shipping Act, as well as the overall competition basis of the Commission's authority. Future cases that allege violations of 46 U.S.C. 41104(a)(3) or (a)(10) will be factually driven and determined on a case-by-case basis. The framework established by this final rule is taken from Commission precedent on refusal to deal cases generally and on suggestions offered by commenters on the NPRM and SNPRM. This rule ensures that shippers can readily discern when a carrier has acted outside the bounds of reasonableness and know what type of claim, 46 U.S.C. 41104(a)(3) or 46 U.S.C. 41104(a)(10) , to bring before the Commission.

While 46 U.S.C. 41104 applies generally to both VOCCs and NVOCCs, this rule only applies to VOCCs. The specific prohibition in 46 U.S.C. 41104(a)(10) that is the subject of this rule applies only to VOCCs because “ocean common carrier” is defined as a vessel-operating common carrier in the Shipping Act. [ 202 ] Although section 41104(a)(3) applies to both VOCCs and NVOCCs, this rule only applies to VOCCs to mirror the scope of the affected population of the NPRM. Importantly, however, this rule does not limit the application of 46 U.S.C. 41104(a)(3) or the rest of 46 U.S.C. 41104(a)(10) to VOCCs. Rather, NVOCCs remain legally liable under 41104(a)(3) and 41104(a)(10) for violations of the Shipping Act.

Similarly, section 41104 applies generally to roll-on/roll-off cargo, bulk cargo, and containerized cargo. This rule, however, only applies to containerized cargo because the issues arising from container availability during the pandemic were not present, or at least not present to the same extent, for roll-on/roll-off cargo or bulk cargo vessels. While this rule is limited to containerized cargo, it does not preclude refusal to deal claims arising in the context of roll-on/roll-off cargo or bulk cargo. FMC has amended § 542.1(a) to clarify that the rule is limited in scope to containerized cargo.

This paragraph sets out terms defined for part 542. FMC has: (1) added a definition of the term “blank sailing”; and (2) amended the definitions of “cargo space accommodations, “sweeper vessel”, “transportation factors”, “unreasonable” and “vessel space accommodations”. The paragraphing structure has also been amended to allow for easier amendment in the future if needed.

FMC has revised the definition of “cargo space accommodations” by changing “negotiated for” to “negotiated for or confirmed”. This change broadens the definition to instances where space has not been “negotiated” between a carrier and a shipper in the traditional sense— i.e., there have been no “back and forth” communications between the two parties, but rather involve a shipper's request for vessel space under an existing service contract or other arrangements, and a responsive vessel booking confirmation from the carrier.

FMC has amended the definition of “transportation factors” by adding “and not reasonably foreseeable” to the end of the definition to clarify that the term is not intended to include factors that are reasonably foreseeable by a vessel operator and has amended the regulation accordingly. If a transportation factor is reasonably foreseeable by the carrier, then the carrier has a responsibility to its customers to find alternative pathways to deliver the cargo and otherwise mitigate the negative impacts of that factor. Transportation factors are not justifications for a carrier to refuse to carry entire classes of cargo, like properly tendered hazardous cargo, heavier products, or inland shipments. Instead, legitimate transportation factors must exist and be outside the vessel operator's control. [ 203 ]

FMC has amended the definition of “unreasonable” by adding “from that ocean common carrier” at the end of the definition to clarify that the purpose of paragraph (b) is to mean conduct that unduly restricts the ability of shippers to meaningfully access ocean carriage services from the ocean common carrier.

FMC has amended the definition of “vessel space accommodations” by changing “necessary to access or book vessel space accommodations” to “necessary to book or access vessel space accommodations”. This is a technical correction that reflects that booking occurs before access.

Paragraph (c) sets out the elements of a claim under 46 U.S.C. 41104(a)(3) for the unreasonable refusal of cargo space accommodations when available. Section 41104(a)(3) claims focus on those refusals that occur at the execution stage, after the parties have reached a deal or mutually agreed on service terms and conditions via a booking confirmation.

FMC has amended the paragraph by adding “with respect to refusals of cargo space accommodations when available” at the end of the introductory sentence. This change clarifies the scope of the rule and aligns § 542.1(c) with § 542.1(a). Section 41104(a)(3)'s prohibition on unfair or unjustly discriminatory methods will be addressed in a separate rulemaking.

Paragraph (d) sets out a list of non-binding factors the Commission may consider in evaluating whether a particular ocean common carrier's conduct was unreasonable under 46 U.S.C. 41104(a)(3) . The factors listed may help to establish an ocean common carrier's bona fide attempts and interest in fulfilling its previously made commitment to a shipper to take its cargo. The list, however, is not exhaustive.

FMC has amended paragraphs (d)(1) and (d)(4) from the SNPRM proposal. FMC has amended paragraph (d)(1) by changing “the efficient movement of export cargo” to “the timely and efficient movement of export cargo”. While section 40104 does not include Start Printed Page 59669 “timely”, its inclusion here comports with the goals of the OSRA 2022 generally. Many exports, particularly agricultural exports, must be loaded and transported to their destinations in a timely manner in order for exporters to fulfill contract obligations. Additionally, FMC has re-written paragraph (d)(4), to simplify the language and better conform with Plain Language. No substantive change is intended by the re-write.

Paragraph (e) sets out non-binding examples of the kinds of conduct that may be considered unreasonable under 46 U.S.C. 41104(a)(3) when linked to a refusal to provide cargo space accommodations. The list is not exhaustive.

FMC has amended examples (3), (4), and (6) and removed proposed example (7). In paragraph (e)(3) FMC has added to the end: “of any other changes to the sailing that will affect when their cargo arrives at its destination port”. This change was added in response to a request for clarification of what a carrier needed to alert or notify shippers about. In paragraph (e)(4) FMC has changed “for vessel loading” to “for cargo tendering or vessel loading”. Adding the phrase “cargo tendering,” while also retaining the phrase “vessel loading”, ensures that sufficient time instead of narrowing this provision to circumstances where the carrier may be the one loading the cargo onto the vessel. FMC has revised the example in subsection (e)(6) to read: “The de facto, absolute, or systematic exclusion of exports in providing cargo space accommodations” in order to remove ambiguity regarding the term “categorically.” FMC has also removed proposed paragraph (e)(7) as it was not a true example.

Paragraph (f) sets out the elements of a claim under 46 U.S.C. 41104(a)(10) for the unreasonable refusal to deal or negotiate with respect to vessel space accommodations when available. Section 41104(a)(10) claims focus on those refusals that occur at the negotiation stage.

FMC has amended paragraph (f) by adding “with respect to refusals of vessel space accommodations provided by an ocean common carrier to the end of the introductory sentence to clarify its scope and aligns § 542.1(f) with § 542.1(a). This rule is focused on the OSRA 2022 amendment to 46 U.S.C. 41104(a)(10) related to vessel space accommodations provided by an ocean common carrier. Although this rule does not extend to claims outside of those related to vessel space accommodation refusals, as noted in the NPRM, the framework of this rule may be applicable in non-vessel-space accommodation cases involving 46 U.S.C. 41104(a)(10) .

Paragraph (g) sets out a list of non-binding factors the Commission may consider in evaluating whether a particular ocean common carrier's conduct was unreasonable under 46 U.S.C. 41104(a)(10) . This list is not exhaustive.

FMC has amended paragraphs (g)(1) and (g)(4). FMC has amended paragraph (g)(1) by changing “the efficient movement of export cargo” to “the timely and efficient movement of export cargo”. The inclusion of the word “timely” comports with the goals of OSRA 2022. Many exports, particularly agricultural exports, must be loaded and transported to their destinations in a timely manner in order for exporters to fulfill contract obligations. FMC has re-written paragraph (g)(4), to simplify the language and better conform with Plain Language. No substantive change is intended by the re-write of (g)(4).

The Commission highlights that investigations into good faith negotiations may include an inquiry into whether or not good customer service was provided by a carrier. It can be unreasonable for an ocean common carrier to fail to provide a meaningful way for customers to contact the carrier or fail to timely provide a rate quotation upon request.

Paragraph (h) sets out non-binding examples of the kinds of conduct that may be considered unreasonable under 46 U.S.C. 41104(a)(10) concerning the refusal of vessel space accommodations. The list is not exhaustive.

FMC has made a technical amendment to (h)(1) by replacing “real offer” with “good faith” offer. FMC believes that the changed wording better captures the true meaning of the example and is better aligned with concepts known by the legal and corporate communities.

FMC has revised the example in subsection (h)(2) to read: “The de facto, absolute, or systematic exclusion of exports in providing vessel space accommodations” in order to remove ambiguity regarding the term “categorically.”

FMC has removed proposed example (h)(3) as this was not a true example.

Along with the definition of sweeper vessel, this paragraph allows the use of a sweeper vessel that has been previously designated for that purpose. The Commission also amended the regulatory text in § 542.1(i) to state that the designation of a vessel as a sweeper vessel is subject to Commission review to determine whether the designation results in an unreasonable refusal of ocean carriage services.

The Commission amended § 542.1(j) to state that the ocean common carrier must file the document with the Commission, not that the ocean common carrier must follow the document. This change aligns with the Commission's intent that whether the ocean common carrier followed a documented export policy is a non-binding consideration that the Commission may consider in determining whether unreasonable conduct has occurred. In addition to using documented export policies to determine whether an ocean common carrier's conduct in a specific matter aligns with their general policies, and thus whether the ocean common carrier acted reasonably, the policies will be used by the Commission to monitor the industry for the unreasonable behavior vis-à-vis exports.

The Commission also added the words “timely and” before the word “efficient.” This inclusion comports with the goals of the OSRA 2022 generally. Many exports, particularly agricultural exports, must be loaded and transported to their destinations in a timely manner in order for exporters to fulfill contract obligations.

The Commission also rephrased 542.1(j)(1) to place this provision in the active tense rather than the passive tense. This is a technical amendment that does not make a substantive change to the regulation.

In association with the amendments to § 542.1(i) regarding the Commission's review of sweeper vessel designations, the Commission added § 542.1(j)(ii) to state that one topic that the documented export policy should address, if applicable, is the ocean common carrier's rules and practices for the designation and use of sweeper vessels.

The Commission also added § 541.2(j)(3), to clarify that the Start Printed Page 59670 documented export policies required to be filed with the Commission, in accordance with 46 U.S.C. 40306 , will remain confidential except as may be relevant to an administrative or judicial proceeding. In accordance with the statute, the information may also be disclosed to either House of Congress, or to a duly authorized committee or subcommittee of Congress.

The Commission has made technical and clarifying edits to paragraph (k), which describes the burden of production. One, the Commission amended § 542.1(k) (1) and (3) to add the words “the Commission's” before “Bureau of Enforcement, Investigations and Compliance.” This is a technical amendment to clarify that the Bureau is part of the Commission. Two, the Commission has amended (k)(1) to clarify, as discussed in the preamble to the SNPRM, that this paragraph addresses the initial burden to establish a prima facie case of a violation. Finally, the Commission has amended (k)(3) to clarify that the ultimate burden of persuasion is always with the complainant or the Bureau of Enforcement, Investigations and Compliance, as also discussed in the preamble to the SNPRM.

The Regulatory Flexibility Act, 5 U.S.C. 601-612 , provides that whenever an agency is required to publish a notice of proposed rulemaking under the Administrative Procedure Act (APA), 5 U.S.C. 553 , the agency must prepare and make available for public comment an initial regulatory flexibility analysis (IRFA) describing the impact of the proposed rule on small entities, unless the head of the agency certifies that the rulemaking will not have a significant economic impact on a substantial number of small entities. 5 U.S.C. 603 , 605 .

The Commission initiated the rulemaking to fulfill a statutory requirement arising from the Ocean Shipping Reform Act of 2022 that prohibits ocean common carriers from unreasonably refusing to deal or negotiate with respect to vessel space accommodations and a related prohibition against unreasonably refusing cargo space accommodations. The final rule defines terms related to what is unreasonable refusal by ocean common carriers and also requires submission of a documented export policy. Like the NPRM and SNPRM, the final rule also applies only to vessel-operating common carriers (VOCCs) who would bear the associated costs of implementation.

VOCCs fall under the Deep Sea Freight Transportation category in the North American Industrial Classification System, and the U.S. Small Business Administration (SBA) defines small entities in this category as having fewer than 1,050 employees. The Commission generally presumes that VOCCs do not qualify as small entities under these SBA guidelines. The Commission did not receive comments following publication of the NPRM or SNPRM contrary to this presumption.

For these reasons, the Chairman of the Federal Maritime Commission certifies that this rule will not have a significant economic impact on a substantial number of small entities.

The rule is not a “major rule” as defined by the Congressional Review Act ( 5 U.S.C. 801 et seq.) The rule will not result in: (1) An annual effect on the economy of $100,000,000 or more; (2) a major increase in costs or prices; or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based companies to compete with foreign based companies. 5 U.S.C. 804(2) .

The Commission's regulations categorically exclude certain rulemakings from any requirement to prepare an environmental assessment or an environmental impact statement because they do not increase or decrease air, water or noise pollution or the use of fossil fuels, recyclables, or energy. 46 CFR 504.4 . This final rule describes the Commission's criteria to determine whether an ocean common carrier has engaged in an unreasonable refusal to deal with respect to vessel space accommodations under 46 U.S.C. 41104(a)(10) , or engaged in unreasonable refusal of cargo space accommodations when available under 46 U.S.C. 41104(a)(3) , and the elements necessary for a successful claim under those provisions. This rulemaking thus falls within the categorical exclusion for matters related solely to the issue of Commission jurisdiction and the exclusion for investigatory and adjudicatory proceedings to ascertain past violations of the Shipping Act. See 46 CFR 504.4(a) (20) and (22) . Therefore, no environmental assessment or environmental impact statement is required.

This final rule calls for a collection of information under the Paperwork Reduction Act of 1995 (PRA) ( 44 U.S.C. 3501-3520 ). As defined in 5 CFR 1320.3(c) , “collection of information” comprises reporting, recordkeeping, monitoring, posting, labeling, and other, similar actions. In compliance with the PRA, the Commission submitted the proposed information collection to the Office of Management and Budget (OMB). Notice of the information collections was published in the Federal Register and public comments were invited. [ 204 ] No comments were received directly on the burden estimate. However, a small number of commenters noted that the SNPRM burden estimate did not take into account the possibility that some vessel operating common carriers (VOCCs) might voluntarily update and submit written export policies more than once a year. While the Commission does not anticipate that many ocean carriers will do so, the burden calculations have been slightly updated for this final rule.

The title and description of the information collections, a description of those who must collect the information, and an estimate of the total annual burden follow. The estimate covers the time for reviewing instructions, searching existing sources of data, gathering and maintaining the data needed, and completing and reviewing the collection.

Summary of the Collection of Information: Section 542.1(j) of title 46 Code of Federal Regulations , by this final rule, requires that VOCCs must submit a documented export policy once per year which is to include pricing strategies, services offered, strategies of equipment provision, and descriptions of markets served. The FMC has authority to require this collection under 46 U.S.C. 40104 .

Need for Information: The report will allow the Commission to monitor the industry for unreasonable behavior prohibited by 46 U.S.C. 41104(a) (3) and (10). This in will allow the Commission to meet two key purposes of the Shipping Act: (1) “ensur[ing] an efficient, competitive, and economical transportation system in the ocean commerce of the United States” ( 46 U.S.C. 40101(2) ); and (2) “promot[ing] the growth and development of United States exports through a competitive and efficient system for the carriage of Start Printed Page 59671 goods by water in the foreign commerce of the United States, and by placing greater reliance on the marketplace” ( 46 U.S.C. 40101(4) ).

Frequency: The regulation requires VOCCs to submit a documented export policy once per year. However, there is no prohibition against carriers updating these export policies and submitting more frequently if they voluntarily elect to do so. The Commission estimates that ten percent of VOCCs will submit documented export policies twice per year, and an additional five percent of VOCCs will submit three times per year.

Types of Respondents: This requirement applies only to VOCCs.

Number of Annual Respondents: The Commission anticipates an annual respondent universe of 140 VOCCs.

Estimated Time per Response: The Commission estimates 40 hours of burden for developing, documenting, and submitting an export policy using the parameters in § 542.1(j) for the first year, assuming that no such policy already exists. For updates, whether annual as required or more frequently as desired by the VOCC, the estimated burden would be 5 hours including review and revisions of the existing policy and submitting it electronically.

Total Annual Burden: The Commission estimates the total person-hour burden at 5,600 hours for initial filing (140 carriers × 40 hours). Additionally in the first year, the Commission estimates an additional burden of 70 hours for the ten percent of carriers that will submit policies a second time (14 carriers × 5 hours), plus an additional 70 hours for the carriers that will submit a third updated policy per year (7 carriers × 5 hours × 2 submissions). The annual burden thereafter is estimated to be 840 hours ((140 carriers × 5 hours) + (14 carriers × 5 hours) + (7 carriers × 5 hours × 2 submissions)).

The Commission estimates the total financial burden to be $783,048.00 for the initial provision of the required export policy, and then an additional $234,914.40 per year for updates, including carriers that may choose to update and provide their export policies on a more frequent basis.

As required by the Paperwork Reduction Act of 1995 ( 44 U.S.C. 3507(d) ), we have submitted a copy of this rule to OMB for its review of the collection of information. Before the Commission may enforce the collection of information requirements in this rule, OMB must approve FMC's request to collect this information. You need not respond to a collection of information unless it displays a currently valid control number from OMB.

This rule meets the applicable standards in E.O. 12988 , “Civil Justice Reform,” ( 61 FR 4729 , Feb. 7, 1996) to minimize litigation, eliminate ambiguity, and reduce burden.

• Administrative practice and procedure
• Non-vessel-operating common carriers
• Ocean common carrier
• Refusal to deal or negotiate
• Vessel-operating common carriers
• Vessel space accommodations

For the reasons set forth in the preamble, the Federal Maritime Commission amends title 46 of the CFR by adding part 542 to read as follows:

1. Add part 542 to read as follows:

Authority: 5 U.S.C. 553 ; and 46 U.S.C. 40104 , 46105 , 40307 , 40501-40503 , 40901-40904 , 41101-41106 .

(a) Purpose. This part establishes the elements and definitions necessary for the Federal Maritime Commission (Commission) to apply 46 U.S.C. 41104(a)(3) with respect to refusals of cargo space accommodations when available for containerized cargo and to apply 46 U.S.C. 41104(a)(10) with respect to refusals of vessel space accommodations provided by an ocean common carrier with respect to containerized cargo. This part applies to complaints brought before the Commission by a private party and enforcement cases brought by the Commission.

(b) Definitions. For the purposes of this section:

Blank sailing means a sailing skipping one or more specific port(s) while still traversing the rest of the scheduled route or the entire sailing being canceled.

Cargo space accommodations means space which has been negotiated for or confirmed aboard the vessel of an ocean common carrier for laden containers being imported to or exported from the United States. Cargo space accommodations includes the services necessary to access and load or unload cargo from a vessel calling at a U.S. port.

Documented export policy means a written report produced by an ocean common carrier that details the ocean common carrier's practices and procedures for U.S. outbound services.

Sweeper vessel means a vessel exclusively designated to load and move empty containers from a U.S. port for the purpose of transporting them to another designated location.

Transportation factors means factors that encompass the vessel operation considerations underlying an ocean common carrier's ability to accommodate laden cargo for import or export, which can include, but are not limited to, vessel safety and stability, weather-related scheduling considerations, and other factors related to vessel operation outside the vessel operator's control and not reasonably foreseeable.

Unreasonable means ocean common carrier conduct that unduly restricts the ability of shippers to meaningfully access ocean carriage services from that ocean common carrier.

Vessel space accommodations means space available aboard a vessel of an ocean common carrier for laden containers being imported to or exported from the United States. Vessel space accommodations also includes the services necessary to book or access vessel space accommodations.

(c) Elements for claims. The following elements are necessary to establish a successful private party or enforcement claim under 46 U.S.C. 41104(a)(3) with respect to refusals of cargo space accommodations when available:

(1) The respondent must be an ocean common carrier as defined in 46 U.S.C. 40102 ;

(2) The respondent refuses or refused cargo space accommodations when available; and

(3) The ocean common carrier's conduct is unreasonable.

(d) Non-binding considerations when evaluating unreasonable conduct. In evaluating the reasonableness of an ocean common carrier's refusal to provide cargo space accommodations, the Commission may consider the following factors:

(1) Whether the ocean common carrier followed a documented export policy that enables the timely and efficient movement of export cargo;

(2) Whether the ocean common carrier made a good faith effort to mitigate the impact of a refusal;

(3) Whether the refusal was based on legitimate transportation factors; and Start Printed Page 59672

(4) Any other relevant factors or conduct.

(e) Non-binding examples of unreasonable conduct. The following are examples of the kinds of conduct that may be considered unreasonable under 46 U.S.C. 41104(a)(3) when linked to a refusal to provide cargo space accommodations:

(1) Blank sailings or schedule changes with no advance notice or with insufficient advance notice;

(2) Vessel capacity limitations not justified by legitimate transportation factors;

(3) Failing to alert or notify shippers with confirmed bookings of any other changes to the sailing that will affect when their cargo arrives at its destination port;

(4) Scheduling insufficient time for cargo tendering or vessel loading so that cargo is constructively refused;

(5) Providing inaccurate or unreliable vessel information; or

(6) The de facto, absolute, or systematic exclusion of exports in providing cargo space accommodations.

(f) Elements for claims. The following elements are necessary to establish a successful private party or enforcement claim under 46 U.S.C. 41104(a)(10) with respect to refusals of vessel space accommodations provided by an ocean common carrier:

(2) The respondent refuses or refused to deal or negotiate with respect to vessel space accommodations; and

(g) Non-binding considerations when evaluating unreasonable conduct. In evaluating the reasonableness of an ocean common carrier's refusal to deal or negotiate with respect to vessel space accommodations, the Commission may consider the following factors:

(2) Whether the ocean common carrier engaged in good faith negotiations;

(3) Whether the refusal was based on legitimate transportation factors; and

(h) Non-Binding examples of unreasonable conduct. The following are examples of the kinds of conduct that may be considered unreasonable under 46 U.S.C. 41104(a)(10) when linked to a refusal to deal or negotiate:

(1) Quoting rates that are so far above current market rates they cannot be considered a good faith offer or an attempt at engaging in good faith negotiations; or

(2) The de facto, absolute, or systematic exclusion of exports in providing vessel space accommodations.

(i) Use of sweeper vessels. Ocean common carriers are not precluded from using sweeper vessels previously designated for that purpose to reposition empty containers; however, the designation of a vessel as a sweeper vessel is subject to Commission review to determine whether the designation results in an unreasonable refusal of ocean carriage services.

(j) [Reserved]

(k) Shifting the burden of production. In accordance with applicable laws, the following standard applies:

(1) The initial burden of production to establish a prima facie case of a violation of this part is with the complainant or the Commission's Bureau of Enforcement, Investigations, and Compliance.

(2) Once a complainant sets forth a prima facie case of a violation, the burden shifts to the ocean common carrier to justify that its actions were reasonable.

(3) The ultimate burden of persuading the Commission always remains with the complainant or the Commission's Bureau of Enforcement, Investigations, and Compliance.

2. Delayed indefinitely, add § 542.1(j) to read as follows:

(j) Documented export policy. Ocean common carriers must file with the Federal Maritime Commission a documented export policy that enables the timely and efficient movement of export cargo.

(l) Each ocean common carrier must submit a documented export policy to the Commission once per calendar year and include, in a manner prescribed by the Commission, pricing strategies, services offered, strategies for equipment provision, and descriptions of markets served. Updates may be submitted more than once per year if the ocean common carrier chooses to do so. Other topics a documented export policy should also address, if applicable, include:

(i) The effect of blank sailings or other schedule disruptions on the ocean common carrier's ability to accept shipments;

(ii) The ocean common carrier's rules and practices for the designation and use of sweeper vessels; and

(iii) The alternative remedies or assistance the ocean common carrier would make available to a shipper to whom it refused vessel space accommodations.

(2) A documented export policy required to be filed by this part must be submitted to: Director, Bureau of Trade Analysis, Federal Maritime Commission, [email protected] .

(3) The documented export policies filed in accordance with this section shall not be circulated outside of the Federal Maritime Commission. These documents, and the information contained therein, shall not be publicly disclosable, in whole or in part, including in response to requests under the Freedom of Information Act. The information may, however, be disclosed to the extent that it is relevant to an administrative or judicial action or proceeding; or to either House of Congress, or a duly authorized committee or subcommittee of Congress.

3. Delayed indefinitely, add § 542.99 to read as follows:

The Commission has received Office of Management and Budget approval for the collection of information in § 542.1(k) pursuant to the Paperwork Reduction Act of 1995, as amended. The valid control number for this collection is 3072-XXXX.

By the Commission.

1.   87 FR 57674 .

2.   87 FR 57674 , 57676 .

3.   See Federal Maritime Commission, Statement of the Commission on Retaliation (Dec. 28, 2021) (available at https://www2.fmc.gov/​readingroom/​docs/​21-15/​21-15_​Policy_​Retaliation.pdf/​ ) (“The Commission also acknowledges that § 41104(a)(3) should not be read so expansively that it renders other prohibitions in Chapter 411 of Title 46 superfluous. Section 41104 of Title 46, for instance, only prohibits specific types of unfair or unjustly discriminatory conduct. Section 41104(a)(3) prohibits a common carrier from “resort[ing] to other unfair or unjustly discriminatory methods . . . for any other reason.” The latter does not swallow the other prohibitions, however, because it is not a flat prohibition on all unfair or unjustly discriminatory conduct. A complainant must show that a carrier engaged in prohibited conduct (refusing cargo space accommodations or other unfair or unjustly discriminatory methods), with respect to a protected entity (shipper), because the protected entity engaged in protected activity (patronizing other carriers, filing a complaint, or other activities of the same class.” (internal citations omitted)).

4.  The protected activity language did remain with the prohibition on retaliation, now found at 46 U.S.C. 41102(d) .

5.   46 U.S.C. 40102 .

6.   46 U.S.C. 40102(18) (definition of “ocean common carrier”).

7.  OSRA 2022 added “including with respect to vessel space accommodations provided by an ocean common carrier” to the general prohibition imposed on all common carriers to not “unreasonably refuse to deal or negotiate.” Thus, while the general prohibition of (a)(10) against unreasonably refusing to deal or negotiate applies to all common carriers, the specific prohibition against refusing to deal or negotiate “with respect to vessel space accommodations” is limited to acts by ocean common carriers ( i.e., VOCCs).

8.   See 87 FR 57674 , 57676 , FN 14.

9.  OSRA 2022 originated as S.3580 and the bill is partially summarized as: “This bill revises requirements governing ocean shipping to increase the authority of the Federal Maritime Commission (FMC) to promote the growth and development of U.S. exports through an ocean transportation system that is competitive, efficient, and economical.” See Congress.gov summary for S. 3580 ( https://www.congress.gov/​bill/​117th-congress/​senate-bill/​3580?​q=​%7B%22search%22%3A%22S.+​3580%22%7D&​s=​4&​r=​1 , accessed July 10, 2022).

10.  The export-focus arguably is also supported by the amendments to the “Purposes” section of the Commission's overall authority contained in 46 U.S.C. 40101 . Specifically, 46 U.S.C. 40101(4) ratified the purpose to “promote the growth and development of United States exports through a competitive and efficient system for the carriage of goods by water.” Congress further highlighted issues related to U.S. exports and imports in section 9 of OSRA 2022. Section 9 created 46 U.S.C. 41110 and the requirement for ocean common carriers to provide information to the Commission to enable the Commission to publish quarterly statistics on total import and export tonnage and the total loaded and empty 20-foot equivalent units (TEUs) per vessel.

11.  United States Bureau of Economic Analysis, available at https://www.bea.gov/​news/​blog/​2024-02-07/​2023-trade-gap-7734-billion#:~:text=​The%20U.S.%20goods%20and%20services,%2456.4%20billion%20to%20%24288.2%20billion (last visited April 24, 2024).

12.  Drewry Container Freight Rate Insight, (last visited April 15, 2024).

13.  PIERS, S&P Global Market Intelligence, available at https://www.spglobal.com/​marketintelligence/​en/​mi/​products/​piers.html?​cq_​cmp=​19414807564&​cq_​plac=​&​cq_​net=​g&​cq_​pos=​&​cq_​plt=​gp&​utm_​source=​google&​utm_​medium=​cpc&​utm_​campaign=​Data_​and_​Insights_​Maritime_​GTA_​PIERS_​TCS_​PIERS_​Search_​Google_​PC1132_​16&​utm_​term=​pie (last visited April 23, 2024).

14.   Id.

15.  Ana Swanson, Crunch at Ports May Mean Crisis for American Farms, N.Y. Times (Nov. 14, 2021), https://www.nytimes.com/​2021/​11/​14/​business/​economy/​farm-exports-supply-chain-ports.html .

16.  Peter S. Goodman, American Importers Accuse Shipping Giants of Profiteering, N.Y. Times (May 4, 2022), https://www.nytimes.com/​2022/​05/​04/​business/​shipping-container-shortage.html .

17.  Caribbean Shipowners' Association, FMC Agreement No. 010979/Central America Discussion Agreement, FMC Agreement No. 011075 (FMC-2023-0010-0038) at 3-4.

18.   88 FR 38789 , 38790-91 (emphasis added).

19.   See e.g., Logfret, Inc., Complainant v. Kirsha, B.V., Leendert Johanness Bergwerff A/k/a Hans Bergwerff, and Linda Sieval, Respondents, 2019 WL 5088014, 11-12 (“The Commission has long relied on these three factors—holding itself out, assuming responsibility, and transportation by water—to identify a common carrier . . . The most essential factor is whether the carrier holds itself out to accept cargo from whoever offers to the extent of its ability to carry, and the other relevant factors include the variety and type of cargo carried, number of shippers, type of solicitation utilized, regularity of service and port coverage, responsibility of the carrier towards the cargo, issuance of bills of lading or other standardized contracts of carriage, and the method of establishing and charging rates. The absence of solicitation does not determine that a carrier is not a common carrier. Holding out can also be demonstrated by a course of conduct. It is sufficient if an entity `held out, by a course of conduct, that they would accept goods from whomever offered to the extent of their ability to carry.' Moreover, `the common carrier status depends on the nature of what the carrier undertakes or holds itself out to undertake to the general public rather than on the nature of the arrangements which it may make for the performance of its undertaken duty.' Addressing the element of holding out to provide transportation by water between the United States and a foreign country for compensation, the Commission stated in Worldwide Relocations (FMC 2012) that an entity may hold out to the public `by the establishment and maintenance of tariffs, by advertisement and solicitation, and otherwise.'” (internal citations omitted)).

20.  FMC-2023-0010-0041 at 22.

21.   Id. at 4, 23-24.

22.   Id. at 23.

23.  FMC-2023-0010-0057 at 2.

24.   87 FR 57674 at FN 4; 46 U.S.C. 40102(18) .

25.  FMC-2023-0010-0041 at 5, FN 5.

26.  FMC-2023-0010-0045 at 6.

27.   Id.

28.   Id.

29.  FMC-2023-0010-0046 at 3.

30.   Id.

31.  FMC-2023-0010-0055 at 2.

32.   Id.

33.  FMC-2023-0010-0038 at 8-9.

34.   88 FR 38789 , 38803 .

35.  FMC-2023-0010-0045 at 6-7.

36.  FMC-2023-0010-0056 at 2-3.

37.  FMC-2023-0010-0057 at 1, 4.

38.   88 FR 38789 , 38803 .

39.  Caribbean Shipowners' Association, FMC Agreement No. 010979/Central America Discussion Agreement, FMC Agreement No. 011075 (FMC-2023-0010-0038) at 9.

40.  National Association of Chemical Distributors (FMC-2023-0010-0046) at 4.

41.  a. E.g., “practice.” Merriam-Webster.com. 2024. https://www.merriam-webster.com (April 1, 2024) (noun, “a: actual performance or application; b: a repeated or customary action; c: the usual way of doing something”; “practice.”; Black's Law Dictionary (11th ed. 2019) (noun, “4. A customary action or procedure”).

b. E.g., “procedure.” Merriam-Webster.com. 2024. https://www.merriam-webster.com (April 1, 2024) (noun, “1a: a particular way of accomplishing something or of acting; 2a: a series of steps followed in a definite order; 3a: a traditional or established way of doing things”).

42.  FMC-2023-0010-0055 at 2.

43.  FMC-2023-0010-0036 at 2, 11.

44.  FMC-2023-0010-0041 at 21-22.

45.  MSC Mediterranean Shipping Company (USA) Inc. (FMC-2023-0010-0036) at 3 and 5; National Milk Producers Federation/U.S. Dairy Export Council (FMC-2023-0010-0035) at 2; ZIM Integrated Shipping Services Ltd. (FMC-2023-0010-0042) at 2.

46.  ZIM Integrated Shipping Services Ltd. (FMC-2023-0010-0042) at 2; see also MSC Mediterranean Shipping Company (USA) Inc. (FMC-2023-0010-0036) at 2, 4-5.

47.   88 FR 38789 , 38797 (citing Credit Practices of Sea-land Serv., Inc., & Nedlloyd Lijnen, B.V., No. 90-07, 1990 WL 427463 (F.M.C. Dec. 20, 1990); Dep't of Def. v. Matson Navigation Co., 19 F.M.C. 503 (1977)).

48.  FMC-2023-0010-0038 at 10.

49.   Id.

50.   88 FR 38789 , 38797 (citing Credit Practices of Sea-land Serv., Inc., & Nedlloyd Lijnen, B.V., No. 90-07, 1990 WL 427463 (F.M.C. Dec. 20, 1990); Dep't of Def. v. Matson Navigation Co., 19 F.M.C. 503 (1977)).

51.  MSC Mediterranean Shipping Company (USA) Inc. (FMC-2023-0010-0036) at 3; World Shipping Council (FMC-2023-0010-0041) at 9.

52.   88 FR 38789 , 38797 (citing Credit Practices of Sea-land Serv., Inc., & Nedlloyd Lijnen, B.V., No. 90-07, 1990 WL 427463 (F.M.C. Dec. 20, 1990); Dep't of Def. v. Matson Navigation Co., 19 F.M.C. 503 (1977)).

53.  Retail Industry Leaders Association (FMC-2023-0010-0049) at 4; American Chemistry Council/National Association of Manufacturers/American Association of Exporters and Importers (FMC-2023-0010-0050) at 4; International Dairy Foods Association (FMC-2023-0010-0053) at 2-3.

54.  FMC-2023-0010-0049 at 4.

55.  American Chemistry Council/National Association of Manufacturers/American Association of Exporters and Importers (FMC-2023-0010-0050) at 4; International Dairy Foods Association (FMC-2023-0010-0053) at 2-3.

56.  FMC-2023-0010-0038 at 11.

57.   Id.

58.   Id.

59.  American Chemistry Council/National Association of Manufacturers/American Association of Exporters and Importers (FMC-2023-0010-0050) at 4.

60.  FMC-2023-0010-0038 at 12.

61.  MSC Mediterranean Shipping Company (USA) Inc. (FMC-2023-0010-0036) at 3; The National Industrial Transportation League (FMC-2023-0010-0045) at 5; National Association of Chemical Distributors (FMC-2023-0010-0046) at 3; Pacific Merchant Shipping Association (FMC-2023-0010-0054) at 1; MAERSK A/S (FMC-2023-0010-0039) at 4; CMA CGM (America) LLC (FMC-2023-0010-0043) at 3; World Shipping Council (FMC-2023-0010-0041) at 3; and OOCL (USA) Inc. (FMC-2023-0010-0052) at 2.

62.  MSC Mediterranean Shipping Company (USA) Inc. (FMC-2023-0010-0036) at 3; National Industrial Transportation League (FMC-2023-0010-0045) at 5; National Association of Chemical Distributors (FMC-2023-0010-0046) at 3; Pacific Merchant Shipping Association (FMC-2023-0010-0054) at 1; MAERSK A/S (FMC-2023-0010-0039) at 4; CMA CGM (America) LLC (FMC-2023-0010-0043) at 3.

63.   Bokum Res. Corp. v. New Mexico Water Quality Control Comm'n, 1979-NMSC-090, 12, 93 N.M. 546, 549, 603 P.2d 285, 288.

64.   E.g. Roth v. United States, 354 U.S. 476, 491 (1957); see also Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989) (“perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity”).

65.  Albert C. Lin, Refining Fair Notice Doctrine: What Notice is Required of Civil Regulations?, 55 Baylor L. Rev. 991, 995 (Fall 2003) (internal citations omitted).

66.  16B Am. Jur. 2d Constitutional Law § 962.

67.  Section 7, paragraph (d), Public Law 117-146 (June 16, 2022).

68.   See Motor and Equipment Mfrs. Ass'n, Inc. v. EPA, 627 F.2d 1095 n.42 (D.C. Cir. 1979) (“administrative agencies generally have no jurisdiction to consider the constitutionality of their organic statutes”); Am. Jur. 2d Admin. Law § 68 (May 2023 update) (“The power delegated by the legislature to an agency generally does not include the inherent authority to decide whether a particular statute or regulation that the agency is charged with enforcing is constitutional.”).

69.   United States v. Leal-Matos, No. CR 21-150 (SCC), 2022 WL 476094, at 1 (D.P.R. Feb. 15, 2022) (citing United States v. Hunter, 663 F.3d 1136, 1142 (10th Cir. 2011) (“[I]dentical or very similar `reasonable and prudent' standard statutes are ubiquitous throughout the United States and have been uniformly upheld against constitutional challenges.”); cf. United States v. Phillipos, 849 F.3d 464, 477 (1st Cir. 2017) (holding that “materiality” is not vague merely because it “is not mathematically precise” and noting that it is a familiar standard in the law). Its imprecision “simply build[s] in needed flexibility while incorporating a comprehensible, normative standard easily understood by the ordinary [person].” Hunter, 663 F.3d at 1142; see also Roth v. United States, 354 U.S. 476, 491 (1957) (explaining that due process requires only “boundaries sufficiently distinct for judges and juries fairly to administer the law”).

70.   United States v. Leal-Matos, No. CR 21-150 (SCC), 2022 WL 476094, at *1 (D.P.R. Feb. 15, 2022) (internal citations omitted).

71.   Paredes v. Garland, No. CV 20-1255 (EGS), 2023 WL 8648830, at *16 (D.D.C. Dec. 14, 2023) (“Here, the underlying conduct proscribed by statute that rendered Mr. [ ] Paredes inadmissible was his commission of a `crime involving moral turpitude,' . . . a term which the Supreme Court has already analyzed and determined is not unconstitutionally vague, . . . Accordingly, since the underlying conduct—the grounds of inadmissibility themselves—are not unconstitutionally vague, neither can it be determined that the guiding standard in [the regulation] is unconstitutionally vague. . . .”).

72.   87 FR 57674 , 57676-77 (Sept. 21, 2022).

73.   88 FR 38789 , 38803-04 (June 14, 2023).

74.  The National Industrial Transportation League (FMC-2023-0010-0045) at 5; National Association of Chemical Distributors (FMC-2023-0010-0046) at 3.

75.  The National Industrial Transportation League (FMC-2023-0010-0045) at 5.

76.   Id. at 5; BassTech International (FMC-2023-0010-0055) at 2.

77.  MSC Mediterranean Shipping Company (USA) Inc. (FMC-2023-0010-0036) at 2 and 3-4; World Shipping Council (FMC-2023-0010-0041) at 6-7.

78.   88 FR 38789 , 38797 .

79.  Retail Industry Leaders Association (FMC-2023-0010-0049) at 4; International Dairy Foods Association (FMC-2023-0010-0053) at 3.

80.   Id.

81.  FMC-2023-0010-0053 at 3.

82.   Id.

83.   Id.

84.  FMC-2023-0010-0036 at 2 and 9.

85.  FMC-2023-0010-0041 at 4, 17-18.

86.   E.g., FMC-2023-0010-0036 at 9.

87.   Id.

88.   See 87 FR 57674 , 57679 NPRM-draft 46 CFR 542.1(b)(2)(ii) (“Whether the ocean common carrier engaged in good-faith negotiations, and made business decisions that were subsequently applied in a fair and consistent manner”).

89.   88 FR 38789 , 38797 .

90.   E.g., MSC Mediterranean Shipping Company (USA) Inc. (FMC-2023-0010-0036) at 2, 4; World Shipping Council (FMC-2023-0010-0041) at 3, 7-8.

91.  MSC Mediterranean Shipping Company (USA) Inc. (FMC-2023-0010-0036) at 4; World Shipping Council (FMC-2023-0010-0041) at 3, 7-8.

92.   Id.

93.  MSC Mediterranean Shipping Company (USA) Inc. (FMC-2023-0010-0036) at 2, 4.

94.  FMC-2023-0010-0041 at 3.

95.  FMC-2023-0010-0040 at 2-4.

96.   Id. at 2-4.

97.  FMC-2023-0010-0042 at 2 (citing 46 CFR 515.2(e) (emphasis in the original)).

98.  FMC-2023-0010-0042 at 2 (citing Docking & Lease Agreement By & Between City of Portland, ME & Scotia Princess Cruises, Ltd., 30 S.R.R. 377, 379 (F.M.C. 2004) (emphasis in original)).

99.  FMC-2023-0010-0042 at 3.

100.  FMC-2023-0010-0052 at 2.

101.  Final rule at §§ 542.1 (d)(4) and (g)(4).

102.   E.g., 88 FR 38789 , 38797 .

103.  FMC-2023-0010-0038 at 5 (citing 88 FR 38789 , 38797 ).

104.  FMC-2023-0010-0038 at 5 (citing Evergreen v. United States, (D.C. Cir. 2023) Case No. 23-1052 Brief for Respondents Federal Maritime Commission and United States, Docket. No. 2005698 at 10).

105.  FMC-2023-0010-0038 at 5.

106.   See Evergreen v. United States, (D.C. Cir. 2023) Case No. 23-1052 Brief for Respondents Federal Maritime Commission and United States, Docket. No. 2005698 at 10 ( comparing 46 CFR 545.5(c)(1) with 46 CFR 545.5(c)(2)(iii) , 545.5(d) , and 545.5(e) , and citing 85 FR 29638 , 29641 (May 18, 2020)).

107.  FMC-2023-0010-0049 at 2.

108.  FMC-2023-0010-0040 at 2-4.

109.  FMC-2023-0010-0049 at 3.

110.   Id. (citing 88 FR 38789 , 38799 ).

111.  FMC-2023-0010-0053 at 4-5.

112.  FMC-2023-0010-0042 at 2.

113.  FMC-2023-0010-0043 at 2.

114.  American Chemistry Council/National Association of Manufacturers/American Association of Exporters and Importers (FMC-2023-0010-0050) at 5.

115.  FMC-2023-0010-0052 at 2.

116.   Id.

117.  FMC-2023-0010-0050 at 4.

118.  FMC-2023-0010-0047 at 5.

119.  FMC-2023-0010-0036 at 2.

120.   Id. at 2, 10.

121.   Id. at 10.

122.  FMC-2023-0010-0041 at 18-19.

123.  FMC-2023-0010-0052 at 4-5.

124.  FMC-2023-0010-0038 at 12-13.

125.  FMC-2023-0010-0045 at 9.

126.   Id.

127.  FMC-2023-0010-0036 at 3.

128.  FMC-2023-0010-0052 at 5.

129.  FMC-2023-0010-0041 at 19.

130.  FMC-2023-0010-0045 at 10.

131.  FMC-2023-0010-0055 at 2.

132.  RILA (FMC-2023-0010-0049) at 4; IDFA (FMC-2023-0010-0053) at 5.

133.  FMC-2023-0010-0053 at 5.

134.  FMC-2023-0010-0043 at 2-3.

135.  FMC-2023-0010-0038 at 12; information on the Maritime Transportation Data Initiative is available at https://www.fmc.gov/​fmc-maritime-transportation-data-initiative/​ .

136.  FMC-2023-0010-0038 at 12.

137.  FMC-2023-0010-0053 at 6.

138.   Id.

139.  MSC Mediterranean Shipping Company (USA) Inc. (FMC-2023-0010-0036) at 3, 10-11; World Shipping Council (FMC-2023-0010-0041) at 19-20.

140.  FMC-2023-0010-0052 at 6.

141.   Id.

142.  FMC-2023-0010-0054 at 2.

143.   Id.

144.  FMC-2023-0010-0038 at 13.

145.   Id. at 12.

146.  MSC Mediterranean Shipping Company USA, Inc. (FMC-2023-0010-0036 at 2-3); World Shipping Council (FMC-2023-0010-0041 at 22); 88 FR 38789 , 38790 (“The Commission also notes that nothing in the previous proposed rule or in this SNPRM is meant to restrict the ability of ocean common carriers to reposition empty containers. The repositing of empty containers can include the use of sweeper vessel.”).

147.   88 FR 38789 , 38805 (June 14, 2023).

148.  American Chemistry Council/National Association of Manufacturers/American Association of Exporters and Importers (FMC-2023-0010-0050) at 6; The National Industrial Transportation League (FMC-2023-0010-0045) at 7; Retail Industry Leaders Association (FMC-2023-0010-0049) at 6; U.S. Dairy Export Council/National Milk Producers Federation (FMC-2023-0010-0035) at 4.

149.  Caribbean Shipowners' Association, FMC Agreement No. 010979/Central America Discussion Agreement, FMC Agreement No. 011075 (FMC-2023-0010-0038) at 6; see also MSC Mediterranean Shipping Company (USA) Inc. (FMC-2023-0010-0036) at 4.

150.  MSC Mediterranean Shipping Company (USA) Inc. (FMC-2023-0010-0036) at 3, 5-8; ZIM American Integrated Shipping Services Co. LLC (FMC-2023-0010-0042) 3-4; World Shipping Council (FMC-2023-0010-0041) at 3, 10-11.

151.   Id.

152.   Id.

153.  World Shipping Council (FMC-2023-0010-0041) at 16; see also Mediterranean Shipping Company (USA) Inc. (MSC) (FMC-2023-0010-0036) at 3 (arguing that the use of confidential export policy in litigation has no precedential value for carriers, shippers, or finders of fact because the basis of the decision will be confidential).

154.  Caribbean Shipowners' Association, FMC Agreement No. 010979/Central America Discussion Agreement, FMC Agreement No. 011075 (FMC-2023-0010-0038) at 2-3.

155.   Id.

156.   46 U.S.C. 40104(a)(1) .

157.  Retail Industry Leaders Association (FMC-2023-0010-0049) at 5; North American Meat Institute (FMC-2023-0010-0037) at 2-3.

158.  MSC Mediterranean Shipping Company (USA) Inc. (FMC-2023-0010-0036) at 6.

159.  American Chemistry Council/National Association of Manufacturers/American Association of Exporters and Importers (FMC-2023-0010-0050) at 7.

160.   88 FR 38789 , 38790 and 38796 .

161.   88 FR 38789 , 38796 .

162.  Caribbean Shipowners' Association, FMC Agreement No. 010979/Central America Discussion Agreement, FMC Agreement No. 011075 (FMC-2023-0010-0038) at 6.

163.  The National Industrial Transportation League (FMC-2023-0010-0045) at 9.

164.  BassTech International (FMC-2023-0010-0055) at 2.

165.  The National Industrial Transportation League (FMC-2023-0010-0045) at 9.

166.  Hapag-Lloyd (America) LLC (FMC-2023-0010-0040) at 5; CMA CGM (America) LLC (FMC-2023-0010-0043) at 1-2.

167.   88 FR 38789 , 38796 .

168.   Id.

169.   Id.

170.  Agriculture Transportation Coalition (FMC-2023-0010-0048) at 4.

171.  BassTech International (FMC-2023-0010-0055) at 2.

172.  FMC-2023-0010-0050 at 6.

173.  FMC-2023-0010-0036 at 3, 11.

174.  FMC-2023-0010-0041 at 20-21.

175.   88 FR 38799 .

176.  FMC-2023-0010-0037 at 4.

177.  FMC-2023-0010-0036 at 2.

178.  FMC-2023-0010-0041 at 6-7.

179.  FMC-2023-0010-0039 at 4.

180.  FMC-2023-0010-0044 at 1-2.

181.   Id. at 2.

182.   Id.

183.   Id. at 3 ( citing California Shipping Line, Inc. v. Yangming Marine Transport Corp., FMC Docket No. 88-15, 25 S.R.R. 1213, 1990 WL 427466, at 23 (Oct. 19, 1990) ( citing Bigelow v. RKO Radio Pictures, 327 U.S. 251, 264-65 (1946)).

184.   Id. at 4.

185.   88 FR 38789 , 38802 .

186.  FMC-2023-0010-0055 at 5.

187.  FMC-2023-0010-0045 at 10-11.

188.  FMC-2023-0010-0046 at 5.

189.  FMC-2023-0010-0038 at 6-8.

190.  FMC-2023-0010-0057 at 3.

191.   88 FR 38789 , 38802 .

192.   Id. at 38797-38798.

193.   Id. at 38797.

194.  FMC-2023-0010-0039 at 2-3.

195.   88 FR 38789 , 38797 .

196.  FMC-2023-0010-0056 at 2.

197.   87 FR 57674 at n. 4; 88 FR 38789 , 38798 .

198.  USA Maritime (FMC-2023-0010-0034) at 2-3; Department of Defense, United States Transportation Command (FMC-2023-0010-0059) at 2-3.

199.   See https://www.maritime.dot.gov/​ports/​cargo-preference/​cargo-preference (last visited April 4, 2024).

200.   Id.

201.   46 CFR 502.92 .

202.   46 U.S.C. 40102(18) .

203.   88 FR 38789 , 38803 .

204.   88 FR 38789 , 38806 .

[ FR Doc. 2024-16148 Filed 7-22-24; 8:45 am]

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Environmental problem-solving: Psychosocial factors

• Published: November 1982
• Volume 6 , pages 535–541, ( 1982 )

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This is a study of individual differences in environmental problem-solving, the probable roots of these differences, and their implications for the education of resource professionals. A group of student Resource Managers were required to elaborate their conception of a complex resource issue (Spruce Budworm management) and to generate some ideas on management policy. Of particular interest was the way in which subjects dealt with the psychosocial aspects of the problem. A structural and content analysis of responses indicated a predominance of relatively compartmentalized styles, a technological orientation, and a tendency to ignore psychosocial issues. A relationship between problem-solving behavior and personal (psychosocial) style was established which, in the context of other evidence, suggests that problem-solving behavior is influenced by more deep seated personality factors. The educational implication drawn was that problem-solving cannot be viewed simply as an intellectual-technical activity but one that involves, and requires the education of, the whole person.

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Miller, A. Environmental problem-solving: Psychosocial factors. Environmental Management 6 , 535–541 (1982). https://doi.org/10.1007/BF01868382

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