Issue Brief

May 23, 2024

Big Wave and Undercurrent

U.S. President Joe Biden at the Philadelphia Shipyard, accompanied by CEO Steinar Nerbovik, Great Lakes Dredge and Dock CEO Lasse Johannes Petterson, and workers Don King and Vern Smith, Thursday, July 20, 2023. (Official White House Photo by Adam Schultz)

Washington's Duo-Track Efforts to Compete with China in the Global Maritime Influence

Economics & Trade, Global Politics, Maritime Studies

China, Global, U.S.

ISSUE BRIEF BY:

Yilun Zhang

Research Associate

Amanda Jin

Part-Time Research Assistant

Key Takeaways

Washington’s efforts to strengthen U.S. shipbuilding and the U.S. shipping industry derived not only from economic and trade concerns, but also from essential needs under the strategic competition. The industrial capacity of shipbuilding and influence in the global maritime logistics industry represent two cornerstones of leadership in the international maritime domain as the United States seeks to secure its control of the sea against a rapidly rising China.

Although the U.S. commercial shipbuilding industry has been in general decline since the Second World War, the impact of the shipbuilding capability decline on U.S. naval power was not felt until recently, when the U.S. Navy struggled to keep up with China’s pace in terms of producing more capable warships. Under the strategic competition, it is imminent for the U.S. to strengthen its shipbuilding capacity even if it is against economic common sense.

After realizing that the gravity of global shipping and supply chains moved to Asia and mainland China, U.S. policymakers made a multitude of efforts to strengthen the U.S. shipping industry to secure U.S. export interests and ensure U.S. influence over global shipping, maritime connectivity and trade. Nevertheless, the U.S. shipping industry still lagged behind significantly in key industrial upgrades and could need exceptional policy support.

Among the Biden administration’s effort to enhance U.S. shipping competitiveness, U.S. agencies made several efforts to enhance its grasp over global shipping regulation, especially by eliminating barriers between law enforcement teams and civil regulators. This criminal-civil fusion has enabled criminal law enforcement to benefit from the monitoring power, industrial expertise and investigative capability of civil regulators.

Introduction

Over the past two years, the Biden administration has spent considerable efforts strengthening U.S. shipbuilding and shipping industries citing China’s unfair trade practices. Most recently, the administration imposed an extra 25% tariff on Chinese-made ship-to-shore cranes following the earlier announcement in April to initiate a Section 301 investigation into China’s practices in the shipbuilding, maritime and logistic sectors.

Commentators have primarily attributed this action to either political incentives or trade-specific concerns. To some, this latest row between the U.S. and China over the shipping and shipbuilding industries is part of an election gimmick for the Biden administration to solidify support from blue collar workers as the incumbent President seeks more labor union endorsement to compete with his predecessor. It can also be assessed as an extension of the longstanding trade disputes between the world’s two largest economies over Beijing’s trade and industrial practices.

However, if Washington only intends to address concerns for U.S. trade and economic competitiveness, policy efforts to strengthen the U.S. shipping sector should primarily focus on manufacturing capabilities and equipment supply chains. Instead, parallel with the White House’s efforts on shipbuilding, Congress is moving equally quickly to regulate and reshape practices on the service end—namely, on the maritime logistics industry.

The picture is bigger. Shipbuilding capacity and the influence in the global shipping industry represent the two cornerstones of leadership, or, for those that place greater emphasis on competition, dominance in the international maritime domain. The control of the sea—represented by the presence of a strong navy and the connectivity with the rest of the world via trade—is now being challenged by a rapidly rising China. Washington’s duo-front efforts to both overhaul its shipbuilding capability and tighten its grasp of global ocean shipping regulation represent a new episode of the U.S.-China strategic competition in the maritime domain.

The Declining U.S. Shipbuilding Industry and Its Security Implications

As the U.S. overall manufacturing base continues to shrink, the shipbuilding industry has been calling for imminent need for government support to sustain operations. The real threat about that decline is that when commercial shipbuilding continues to lose competitiveness and fade, naval shipbuilding, especially auxiliary shipbuilding—which is similar to commercial shipbuilding —will inevitably be impacted by the loss of skilled labor, capital, and technology knowhow.

Since the Second World War, the U.S. commercial shipbuilding industry has generally been in decline. The reasons are twofold. On the one hand, the rise of Asian countries，such as Japan and Korea，introduced a large amount of cheap labor forces into the international stage. On the other, the course of globalization enabled the overall U.S. manufacturing industries to gradually move their operations outbound and offshore. That being said, those decline has not significantly impacted the U.S. naval capability, primarily because for a considerable amount of time, Washington was in Cold War with the Soviet Union and was thus constantly pressured to consistently revamp and innovate its naval capability. In addition, as the United States succeeded in leading naval technology innovation during the 1970s and the 1980s, the U.S. Navy was more competitive both in terms of numbers and capability vis-a-ve their Soviet counterpart whose primary concern was land-based warfare in Europe.

That dominance in the global naval community continued following the collapse of the Soviet Union when for a considerably long period of time, no navy on this planet was even comparable to the size and might of the U.S. Navy. Therefore, even as the U.S. commercial shipbuilding capacity continued to decline, and Japan, South Korea and China became the world’s top shipbuilders while the U.S. fell out of the top ten club, the U.S. Navy faced limited pressure to produce more ships in a short amount of time. Especially following 9/11, the U.S. engaged in the two-decade long Global War on Terror which primarily focused on asymmetric and counter-insurgency warfare. Accordingly, the U.S. Navy felt even less demand to innovate and grow.

The balance of power shifted following China’s rapid rise in the first decade of the 21st Century. Beijing’s long-term plan and investment in shipbuilding capacity granted its dominance in the world’s commercial shipbuilding industry. Moreover, following a “humiliating” retreat from the 1995 Taiwan Strait Crisis, Beijing quickly developed its navy with a clear aim to boost its control and defense near China’s shores in the East China Sea and the South China Sea. Amidst China’s rapid production of aircraft carriers and advanced destroyers, the 2016 standoff between the Chinese and the U.S. Navy in the South China Sea was an especially sobering moment for the United States. As a response to U.S. naval exercises in the region, China dispatched a large fleet to conduct military exercise and closed part of the South China Sea. It was also since 2016 that China’s naval fleet size began to outplay that of the U.S.

As Washington shifts back to a great power competition, naval experts at the Pentagon realized that they could hardly match China’s pace in terms of producing more capable warships. Instead, the Pentagon struggled to innovate and accommodate the new strategic needs, constrained by its limited budget and the United States’ limited shipbuilding capabilities—which were badly overwhelmed by the need to both repair obsolete warship models and to lay down new warships.

In recent years, the U.S. Navy has quickly realized that there is a huge gap between their demand and their capacity. The Navy originally planned to match China’s pace in naval shipbuilding by reaching a fleet size of 355 ships while developing more advanced cruisers in the 2010s. The plan was thereafter repeatedly readjusted. The Pentagon even canceled their cruiser development plan and instead decided to move up more production for new frigates. Budget issues aside, the U.S. Navy increasingly found itself unable to match China’s pace because it was limited by the U.S. shipbuilding capacity: China commissioned over 20 warships a year while the U.S. struggled to deliver new warships on time.

As the two navies increasingly interact with each other in the broad West Pacific area, the Pentagon has viewed shipbuilding capacity as a top priority to maintain U.S. advantage over China in the maritime domain. China overtook the U.S. as the world’s largest navy in 2023. The challenge is pressing for the Pentagon, especially after the U.S. military realized that they will be over a hundred surface combatants short compared with China by 2030s.

U.S. Secretary of the Navy Carlos del Toro announced a 45-day review over U.S. shipbuilding capacity this year and the Secretary himself repeatedly emphasized the importance of strengthening U.S. shipbuilding capacity in general in order to compete with China at sea. While the U.S. attempts to increase available shipbuilding capacity by moving some of the ship maintenance duties to its Japanese and Korean allies, for efficiency and security considerations, it is still imminent for the U.S. to strengthen its shipbuilding capacity even if it is against economic common sense—after all, the U.S. commercial shipbuilding industry is, frankly speaking, a ‘Walking Dead.’

The Rolling Momentum of U.S. Ocean Shipping Reform

Maritime shipping is the lifeline that connects the United States with the rest of the world. It is also the carrier of U.S. influence outreach. With China’s rapid rise and its central position in the global supply chain, however, Beijing has quickly gained a more influential position in the global maritime shipping industry. That is threatening the U.S. capability to influence the flow of global trade, 90% of which is transported via the sea. The strongest alarm came when the pandemic hit the U.S. coast as thousands of cargo ships struggled to find a docking space inside various U.S. ports. Many Asian carriers therefore decided to ship their empty containers back instead of waiting for U.S. exports to travel all the way from the deep inland to the coast. In addition to the shocking reality that the gravity of global shipping is on the other side of the Pacific, the further realization that U.S. regulators could do little to properly safeguard U.S. export interests invited rage and actions from the U.S. Congress. On March 2, 2021, U.S. Senators John Thune (R-SD) and Amy Klobuchar (D-MN) led a group of 24 Senators to “urge” the administration to investigate and address the “urgent” issue of port congestion. Days later, on March 9, 2021, a bipartisan group of more than 100 House lawmakers made a similar request.

For U.S. lawmakers and regulators, their initial concern for the U.S. international shipping did not have a regional focus. Instead, earlier policy attempts primarily sought to investigate and gather more information about practices around the world that affect U.S. interests. For example, after the Federal Maritime Commission (FMC)—the federal agency that regulates U.S. international ocean transportation—initiated an investigation into the congestion of U.S. ports and within the global shipping system amidst pandemic disruptions on March 31, 2020, FMC’s investigation and the corresponding report widely covered shipping routes and carriers around the world. Similarly, when concerns about “unjust and unreasonable” demurrage and detention practices arose in 2019, the FMC chose to create an audit program to analyze the top nine carriers by market share.

Washington’s policy focus on international shipping shifted since the pandemic, as regulators and policymakers realized that many of the leading carriers in the global shipping industries are either based, owned, or collaborating with Chinese entities. The pivot to Asia and China was already obvious in the aforementioned March 2, 2021 statement by U.S. Senators, when Senators Amy Klobuchar (D-MN) and John Thune (R-SD) attributed the pandemic congestion to “unreasonable practices by ocean carriers” between the U.S. and Asia, including refusal to carry agriculture products from U.S. ports to Asia. The two Senators eventually became the main sponsors of the Ocean Shipping Reform Act. The bill significantly expanded FMC’s authority to investigate and penalize “unfair or unjustly discriminatory” shipping practices—as will be defined by FMC itself. Although not mentioned in the actual language of the bills, sponsors of OSRA explicitly identified the bill as a way to “support American exports” and “help reduce the United States’ longstanding trade imbalance with China and other countries.” In an effort to “update federal regulations for the global ocean shipping industry” given China’s rise, the FMC is no longer required to ensure that the U.S. ocean transportation system is “insofar as possible, in harmony with, and responsive to international shipping practices.” On August 10, 2021, Reps. Dusty Johnson (R-SD-At Large) and John Garamendi (D-CA-3) introduced in the House the Ocean Shipping Reform Act of 2022 (OSRA). On February 3, 2022, OSRA was introduced in the Senate. The bill became public law on June 16, 2022.

Shortly after OSRA’s enactment, U.S. lawmakers built on the momentum and proposed to develop a more tailored policy toolbox that specifically addressed Chinese carriers and shipping exchanges. On March 28, 2023, Reps. Johnson and Garamendi, the two original House sponsors of OSRA, introduced the Ocean Shipping Reform Implementation Act (OSRIA). Expanding prior policy intentions of OSRA, the new bill will explicitly require FMC to “promote reciprocal trade” between the U.S. and the world, and no longer requires U.S. ocean shipping regulation to maintain “a minimum of government intervention and regulatory costs.” Specifically on China, OSRIA proposes to prohibit all Chinese carriers and their subsidiaries from charging rates “below a just and reasonable level” or “establish[ing], maintain[ing], or enforce[ing]” practices that “is likely to result” in unreasonable charges. Under OSRIA, the Chinese carriers bear the burden to justify the reasonableness of their practices, and FMC has authority to suspend or void practices that it deems to be unjust and unreasonable. The OSRIA passed the House on March 21, 2024 and is still under consideration of the U.S. Senate.

The Ocean Shipping Reform Act and the Ocean Shipping Reform Implementation Act

*Note: The summary below concerns the public law version of the Ocean Shipping Reform Act (OSRA) (in effect since June 16, 2022) and the March 21, 2024 version of the Ocean Shipping Reform Implementation Act (OSRIA) as it passed the House. OSRIA is still under discussion at the U.S. Senate and does not have any legal effect as of April 18, 2024.

Ocean Shipping Reform Act (OSRA)

Ocean Shipping Reform Implementation Act (OSRIA)

Change of General Policy Direction

FMC is no longer required to ensure that the U.S. ocean transportation system is “insofar as possible, in harmony with, and responsive to international shipping practices.”

FMC is no longer required to ensure that its regulatory process has “a minimum of government intervention and regulatory costs.”

In supporting U.S. exports, FMC is no longer required to “plac[e] a greater reliance on the marketplace.”

FMC is granted the additional duty to “promote reciprocal trade in the common carriage of goods by water in the foreign commerce of the United States.”

New Civil Offenses

A “common carrier, marine terminal operator, or ocean transportation intermediary” is prohibited from directly or indirectly “resort[ing] to” “unfair or unjustly discriminatory action” for “any reason.”

“Controlled carriers”—newly defined to include any Chinese companies or subsidiaries thereof—are now prohibited from charging rates “below a just and reasonable level” or “establish[ing], maintain[ing], or enforce[ing]” practices that “is likely to result” in unreasonable charges.

Burden of Proof

Ocean common carriers bear the burden to establish that its demurrage or detention charges are reasonable (and thus lawful).

Controlled carriers bear the burden to demonstrate that its rate, charge, classification, rule, or regulation is just and reasonable (and thus lawful).

Investigation and Disclosure Requirement

Ocean carriers are required to disclose “essential terms”—as are deemed necessary or appropriate by the FMC—of its service contracts.

Ocean carriers are required to provide clear information about its demurrage and detention charges.

Controlled carriers may be requested to justify that any of its existing or proposed rates, charges, classifications, rules or regulations are lawful.

Penalties of Violation

FMC may require carriers to refund charges to shippers if FMC finds “unfair or unjustly discriminatory actions.”

FMC may suspend or void any rate, charge, classification, rule or regulation imposed by controlled carriers if FMC determines that it is not “just and reasonable.”

Shipping Exchanges

Any shipping exchange “involving ocean transportation in the foreign commerce of the United States” must be registered with FMC.

FMC can accept individual complaints about shipping exchanges.

FMC is tasked to investigate into the Shanghai Shipping Exchange.

*See “Acceptance of Individual Complaints” cell and “Report to Congress” cell below.

Publication of Containerized Freight Logistics

FMC can accept complaints by individual companies and entities about unfair charges and practices of ocean common carriers.

FMC can self-initiate investigations of unfair practices and apply enforcement measures as appropriate.

FMC can accept complaints by individual companies and entities about shipping exchanges, including “incidents of market manipulation or other anti-competitive practices.”

Report to Congress

FMC is tasked to report “concerning practices” by ocean common carriers, especially if they are state-owned, state-controlled or based in China.

FMC is tasked to report “anticompetitive, non-reciprocal trade” of Chinese companies, including marine terminal operators.

FMC is tasked to identify and report “any trade imbalance resulting from the business practices of ocean common carriers,” including by analyzing the containerized freight statistics.

FMC is tasked to conduct an independent investigation into the Shanghai Shipping Exchange, including “anti-competitive advantages benefitting” the exchange,” the ability of Chinese agencies and the exchange to “manipulate container freight markets,” and the ability of other shipping exchanges to identify and report concerning practices by the Shanghai Shipping Exchange.

Meanwhile, as the gravity of global shipping has shifted to Asia and specifically mainland China, the U.S. shipping service and port management industry has also lagged behind in key industrial upgrading and struggled to keep up in supply chain efficiency. One notable issue that attracted Washington’s attention is the digitalization of shipping logistics and ports. As the limited scale of the U.S. international shipping service industry made it difficult to gather upfront investment and as the U.S. industry lacked pressure to keep up with leading global practices, American ports still had difficulty to automate as late as 2023, while stakeholders and policymakers were still calling for nationwide port data connectivity as late as 2021. In comparison, Chinese and European players already moved past fully automated ports to finalize logistics digitalization in the 2010s. Thus, the development, maturation and globalization of Chinese logistics data services—most notably through the National Transportation and Logistics Public Information Platform, LOGINK—-has become especially alarming for U.S. policymakers as Washington attaches heavier weight to the U.S. international shipping industry. On September 20, 2022, the U.S.-China Economic and Security Review Commission (USCC) issued a report on China’s LOGINK platform, and argued that LOGINK’s “wide adoption” and global cooperation would create “economic and strategic risks” for the United States by undercutting U.S. firms and allowing China to have greater influence and visibility in the global shipping and supply chains. On March 22, 2023, U.S. Rep Michelle Steel (R-CA) and Senator Tom Cotton (R-AR) jointly introduced a bill to prohibit entities in the U.S. from using or sharing data with LOGINK, among others. Under a provision of the National Defense Authorization Act for Fiscal Year 2024 (FY24 NDAA), which became law on December 22, 2023, FY24 NDAA fundings are prohibited from supporting any port that uses LOGINK. OSRIA also included provisions that targeted China’s shipping logistics development. Given the current status of U.S. ports and shipping services, drastic measures might be needed to incentivize industrial development and protect domestic industries before they can keep up with international standards.

Existing and Proposed U.S. Laws on China’s Port Logistics Information Technologies

Existing Law on LOGINK

Federal fundings authorized under the National Defense Authorization Act for Fiscal Year 2024 (FY24 NDAA) is prohibited from supporting any port that uses LOGINK, a Chinese port logistics platform.

Samples of Proposed Law on LOGINK

Under H.R.1836 – Ocean Shipping Reform Implementation Act (OSRIA):
- FMC is required to develop data standards for the voluntary sharing of maritime freight logistics information and supply chain data.
- Ports that receive certain federal funding might be required to adopt the aforementioned data.
- Entities that receive certain federal funding and support are prohibited from using LOGINK and other prohibited logistics information technologies provided by China or Chinese state-affiliated entities.
Under S.939/H.R.6228 Securing Maritime Data from Communist China Act:
- The Department of Defense is banned from using LOGINK or contracting with entities that use or share data with LOGINK
- The President is required to ban entities in the United States from using or sharing data with LOGINK
- The President is required to submit a report on the threat of LOGINK, including the status of U.S. port bans on LOGINK
- The U.S. will work with international partners to stop the usage of LOGINK

Criminal-Civil Fusion

Just as the U.S. Congress discussed ways to expand FMC authority to arbitrate and intervene with “unfair or unjustly discriminatory” practices in global shipping, the White House has also sought ways to expand the policy toolbox to promote competition in the ocean shipping industry. On July 9, 2021, President Biden issued a new Executive Order (EO) to establish a whole-of-government approach to promote “fair competition” and deter “unfair competition” in a variety of industries. The first section of the EO specifically expressed concerns about the consolidation of “the global container shipping industry” into “a small number of dominant foreign-owned lines and alliances” and its negative impacts on American exporters.

Under the EO’s strategy to only advance fair competition, U.S. agencies have made several efforts to eliminate barriers between law enforcement teams and civil regulatory bodies, the former being authorized to make arrests and put up criminal charges, while the latter are tasked to monitor regular economic activities and oversee strategic fields in the economy through special administrative and investigative duties. In other words, U.S. agencies under the Biden administration have started to advance a fusion of criminal law enforcement and civil, agency-level rulemaking and regulatory activities. On February 28, 2022, building on requirements of the aforementioned whole-of-government competition strategy, the FMC and the Department of Justice (DOJ) announced a “historic” partnership to enforce ocean shipping and antitrust laws. Specifically, the FMC committed to “continue ramping up oversight of the global ocean shipping industry,” including through its data initiative, audit programs, civil investigations and regulatory proceedings. Meanwhile, DOJ’s Antitrust Division which handles criminal and civil enforcement of antitrust lawsoffers to provide attorneys and economists to support the FMC. In response, FMC will provide the DOJ with “maritime industry expertise” and other support for antitrust enforcement actions.

Although it is not unusual for the DOJ to cooperate with other U.S. agencies, the strategic partnership between the FMC and the DOJ is remarkable as FMC is considered an “economic regulator” in the maritime industry with limited power to enforce law and no power in criminal law enforcement. Before the Biden administration’s new whole-of-government approach and the FMC-DOJ strategic partnership, past interagency collaboration on maritime antitrust were limited to interaction and info-sharing between law enforcement teams given their overlapping and supplementary jurisdiction. For example, during a multi-year antitrust investigation into the international ocean shipping industry from 2014 to 2019, DOJ’s Antitrust Division worked with the Federal Bureau of Investigation (FBI) and U.S. Customs and Border Protection (CBP). Both agencies are amongf the primary law enforcement agencies in their respective field with explicit authority to enforce criminal offenses. In comparison, although the FMC has an “Office of Enforcement,” the office identifies its tasks to include participation in FMC’s regulatory proceedings, investigations of regulatory violations, negotiation of informal compromises of civil penalties and monitoring of formal court proceedings. In other words, the duty of the team is limited to regulatory enforcement and seldomly involves even the enforcement of civil law.

Despite its limited law enforcement power compared to DOJ’s traditional partners in criminal law enforcement, the FMC has regular presence and specialized expertise in the ocean shipping industry, anadvantage that both U.S. lawmakers and the Commission itself have regularly emphasized. The Ocean Shipping Reform Act of 2022 tasked the FMC with the responsibility to collect and publish containerized freight logistics as detailed as the total import, export and container changes per vessel at each U.S. port. In addition, the FMC is responsible to regularly report to Congress “concerning practices” of Chinese ocean carriers. Under the proposed OSRIA t, the Commission is further trusted to regularly report “anticompetitive [and] non-reciprocal trade” practices by Chinese common carriers. On July 29, 2022, more than a month after the Ocean Shipping Reform Act became law on June 16, 2022 and five months after the FMC-DOJ historic partnership, the FMC restructured its Bureau of Enforcement into a new Bureau of Enforcement, Investigations, and Compliance. The restructuring will lead to the establishment of two separate offices specifically in charge of investigation and compliance, respectively, and allow the FMC to increase the number of its investigators.

Under new legislative authority and administrative reshuffling, the FMC, as an economic regulator, is capable and required to consistently keep an eye on the day-to-day operations of the ocean shipping industry. As this level of oversight is unavailable (and potentially unconstitutional) to criminal law enforcement agencies, the criminal-civil fusion in ocean shipping effectively grants the Biden administration additional and unique capabilities to advance its competition policies,and efficiently address concerns such as lack of data and government insight into the field.

Concluding Thoughts

In a nutshell, despite getting momentum under the Biden administration, the concerns over shipbuilding and shipping industry will become a persistent issue that the U.S. will continue to tackle as it pursues strategic competition with China. However, given Washington’s numerous actions to progressively reshuffle global shipping, policymakers and stakeholders should take precaution that the efforts for change do not escalate tensions into conflicts and establish guardrails to ensure that the long-term competition in the global maritime domain, particularly in shipbuilding and shipping industries, does not veer or escalate further into a zero-sum or even mutually destructive hostility. Afterall, shipping provides the very foundation for global connectivity, development and stability that impact not only the U.S. and China but also the entire world.

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Big Wave and Undercurrent

Washington's Duo-Track Efforts to Compete with China in the Global Maritime Influence

ISSUE BRIEF BY:

Key Takeaways

On This Page

Introduction

The Declining U.S. Shipbuilding Industry and Its Security Implications

The Rolling Momentum of U.S. Ocean Shipping Reform

The Ocean Shipping Reform Act and the Ocean Shipping Reform Implementation Act

Existing and Proposed U.S. Laws on China’s Port Logistics Information Technologies

Existing Law on LOGINK

Samples of Proposed Law on LOGINK

Criminal-Civil Fusion

Concluding Thoughts

Related Terms

You May be Interested In

White House’s Headless Trade Policy Will Induce Congress-Hooked Protectionism

MAP Spotlight: Baltic Sea

A Landmark Advisory Opinion: ITLOS Strengthens Legal Framework for Climate Action

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