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110th Congress                                              Exec. Rept.
                                 SENATE
 2d Session                                                      110-19

======================================================================



 
INTERNATIONAL CONVENTION ON THE CONTROL OF HARMFUL ANTI-FOULING SYSTEMS 
                                ON SHIPS

                                _______
                                

               September 11, 2008.--Ordered to be printed

                                _______
                                

           Mr. Dodd, from the Committee on Foreign Relations,
                        submitted the following

                                 REPORT

                   [To accompany Treaty Doc. 110-13]

    The Committee on Foreign Relations, to which was referred 
the International Convention on the Control of Harmful Anti-
Fouling Systems on Ships, adopted on October 5, 2001 and signed 
by the United States on December 12, 2002 (the ``Convention'') 
(Treaty Doc. 110-13), having considered the same, reports 
favorably thereon with two declarations, as indicated in the 
resolution of advice and consent, and recommends that the 
Senate give its advice and consent to ratification thereof, as 
set forth in this report and the accompanying resolution of 
advice and consent.

                                CONTENTS

                                                                   Page

  I. Purpose..........................................................1
 II. Background.......................................................2
III. Major Provisions.................................................4
 IV. Entry Into Force.................................................7
  V. Implementing Legislation.........................................7
 VI. Committee Action.................................................7
VII. Committee Recommendation and Comments............................7
VIII.Resolution of Advice and Consent to Ratification................10


                               I. Purpose

    The purpose of the Convention is to control the adverse 
effects of anti-fouling systems that have an impact on the 
marine environment and human health, and to encourage the 
continued development of anti-fouling systems that are 
effective and environmentally safe. An anti-fouling system is 
any surface treatment, paint, surface, or device that is used 
to prevent the growth of marine organisms, such as algae and 
barnacles, on the hull of a ship.

                             II. Background

    In the 1960s, organotin-based anti-fouling systems with 
Tributyltin (TBT) (a biocide)\1\ were introduced to the 
shipping industry. By the late 1960s, a breakthrough in anti-
fouling systems came in the form of ``self-polishing'' or 
``ablative'' TBT-based paints, which controlled the release 
rate of the biocide over the life of the paint so that ships 
could go for several years between hull recoatings. By the 
1970s, TBT-based anti-fouling paints were widely used, not only 
on pleasure craft, but also on large ocean-going vessels.\2\ 
These systems are generally used to keep the hulls of ships 
smooth and free of ``fouling'' or hull-borne species that would 
otherwise reduce the maximum speed of a vessel and increase 
fuel consumption.
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    \1\TBT is an organotin that is a biocide. The most common 
organometallics used in anti-fouling paint are TBT oxide and TBT 
methacrylate.
    \2\Slick Alternatives: Silicone-based fouling release systems gain 
in popularity, Marine Log (March 2007), p. 31 (noting that ``[b]y the 
1970s, TBT-containing anti-fouling paint was used on the hulls of most 
of the world's oceangoing ships'').
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    Researchers found, however, that TBT in the marine 
environment was not only killing hull-borne species, it was 
also killing sea life in the water.\3\ Studies revealed high 
concentrations of TBT in shellfish and accumulations in fish 
and sea mammals, causing shell deformations in oysters, sex 
changes and sterility in certain mollusks, and various 
alternative adverse affects on other marine life. There was 
further evidence that TBT was entering the food chain and might 
therefore adversely affect human health.
---------------------------------------------------------------------------
    \3\A publication by the Environmental Protection Agency, which goes 
into considerable detail regarding the damage that TBT causes to the 
marine environment, noted that ``[TBT] is a problem in the aquatic 
environment because it is extremely toxic to non-target organisms, is 
linked to imposex and immuno-supression in snails and bivalves, and can 
be persistent.'' See Ambient Aquatic Life Water Quality Criteria for 
Tributyltin (TBT) final, Office of Water, 4304T, EPA-822-R-03-031, 
December 2003, Executive Summary. The publication goes on to cite a 
number of technical review papers that cover the hazards of TBT in the 
aquatic environment at page 2.
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    Congress recognized the harmful effects of organotin 
compounds in anti-fouling systems on marine and freshwater 
organisms in 1988 and enacted legislation intended to protect 
the aquatic environment by restricting the use of such 
systems.\4\ In 1990, the International Maritime Organization's 
Marine Environmental Protection Committee (MEPC) adopted a 
resolution which recommended that governments adopt measures to 
control the potential for adverse impacts on the marine 
environment from the use of anti-fouling paint containing TBT 
and, as an interim measure, to specifically consider 
eliminating the use of such anti-fouling paint on non-aluminum 
hulled vessels of less than 25 meters in length and the use of 
anti-fouling paints with a leaching rate of more than four 
microgrammes of TBT per day, which was consistent with U.S. 
law.\5\ In November 1999, the International Maritime 
Organization (IMO) adopted an Assembly resolution that called 
for a legally-binding treaty that would address the harmful 
effects of anti-fouling systems used on ships. This resolution 
led to the Anti-Fouling Convention, which was adopted by the 
IMO on October 5, 2001. The United States played a leading role 
in the negotiation of the Convention and signed it on December 
12, 2002.
---------------------------------------------------------------------------
    \4\See Section 2 of P. L. 100-333 (signed into law on June 16, 
1988); the Organotin Anti-Fouling Paint Control Act of 1988 (OAPCA), 33 
U.S.C. Sec. Sec. 2401-2410.
    \5\The United States was already doing this pursuant to OAPCA.
---------------------------------------------------------------------------
    Over the last several years, the Environmental Protection 
Agency (EPA) has been working to phase out the use of TBT as an 
anti-fouling coating on ships in the United States. The EPA has 
achieved this by, for example, canceling registrations for TBT 
anti-fouling systems permitted under the Federal Insecticide, 
Fungicide, and Rodenticide Act (FIFRA).\6\ Administration 
officials have informed the committee that as of December 1, 
2005, the last FIFRA registration for a TBT anti-fouling system 
to be used on the hulls of ships and boats was cancelled, 
giving the registrant until December 31, 2005, to sell any 
existing stock of its product produced before December 1, 2005. 
Beyond December 31, 2005, the registrant could no longer 
legally sell or distribute the product. Since the functional 
shelf-life of TBT anti-fouling systems is limited, 
administration officials testified that significant use of such 
systems at this time ``seems unlikely.'' Nevertheless, TBT-
based paints continue to be applied to ships in countries that 
have not prohibited TBT use. In testimony before the committee, 
administration officials stated that ``TBT-based systems are 
still produced in Asia, particularly Southeast Asia and Korea . 
. . .'' Under the treaty, however, ships using TBT paints in 
violation of the Convention's requirements would not be allowed 
into U.S. ports, shipyards, or offshore terminals.
---------------------------------------------------------------------------
    \6\7 U.S.C. Sec. 136 et seq.
---------------------------------------------------------------------------
    To mitigate the damaging impact of these anti-fouling 
systems, the Convention: 1) requires Parties to prohibit the 
use of anti-fouling systems containing organotin compounds 
acting as biocides (if not properly sealed) on ships that fly 
their flag or operate under their authority and provides for 
prohibiting ships that use such systems from entering Parties' 
ports, shipyards, or offshore terminals; 2) requires Parties to 
take appropriate measures to safely and in an environmentally 
sound manner collect, handle, treat, and dispose of wastes 
resulting from the application or removal of controlled anti-
fouling systems; 3) provides a procedure through which new, 
harmful anti-fouling systems can be added to the prohibited 
list in Annex 1 in the future, after a comprehensive and 
technical review process; 4) obligates Parties to take 
appropriate measures to promote and facilitate scientific and 
technical research, as well as share information, regarding 
anti-fouling systems; and 5) addresses the inspection of ships 
to determine compliance with the Convention and requires 
Parties to establish sanctions for violations that are 
``adequate in severity to discourage violations'' of the 
Convention.
    The coatings industry has developed alternatives that do 
not contain TBT. Some of these coatings are silicone-based. 
They are ``super slick'' coatings that prevent any organisms 
from attaching to the hull when the ship is moving.\7\ Because 
they have a lower tension surface, a side benefit is that the 
silicone-based coatings make the ship more fuel efficient. Some 
ships may choose to first remove the existing coating that 
contains TBT before applying a coating that is TBT-free, but it 
is more likely that ships will first apply a sealant to the 
existing coating to prevent leaching of the harmful compounds 
into the water and then apply a TBT-free coating, which is an 
alternative provided for in the Anti-Fouling Convention. For 
structures that do not move through the water, such as buoys, a 
``prickly'' coating has been developed that keeps organisms 
from attaching.
---------------------------------------------------------------------------
    \7\  Slick Alternatives: Silicone-based fouling release systems 
gain in popularity, Marine Log (March 2007), p. 31.
---------------------------------------------------------------------------
    The ratification of this treaty is favored not only by the 
administration and environmental organizations, but also by the 
shipping industry and major manufacturers and importers of 
anti-fouling systems. Industry participated in discussions that 
led to the Convention. At the IMO, the International Chamber of 
Shipping, for example, ``urged the Marine industry to follow 
the dates in the Convention and requested that Governments 
control the manufacture of TBT antifoulings in support of the 
dates for the TBT ban.''\8\ In testimony before the committee 
on July 10, 2008, Ambassador David Balton noted that ``the U.S. 
anti-fouling paint industry favors this Convention. Why? 
Because it promotes a single regulatory program for all 
countries that will likely increase the use of environmentally 
friendly anti-foulants that they, the U.S. industry, have 
developed. U.S. shipyards are also interested in the single 
international standard because it provides a more level playing 
field as between them and shipyards in other countries.''
---------------------------------------------------------------------------
    \8\IMO TBT Antifouling Ban--Account of discussions at IMO-MEPC47 
(4-8 March 2002) and Summary of Reaction to IMO Antifouling Systems 
Convention (IMO-AFS) available at http://www.intersmoothspc.com/
environment/Interswift _IMO.PDF.
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                         III. Major Provisions

    A detailed article-by-article analysis of the Convention 
may be found in the Letter of Submittal from the Secretary of 
State to the President, which is reprinted in full in Treaty 
Document 110-13. A summary of key provisions is set forth 
below.

Prohibitions on Harmful Anti-Fouling Systems

    Article 4 requires each Party to ``prohibit and/or 
restrict'' the application, re-application, installation, or 
use of the anti-fouling systems listed in Annex 1 on ships that 
fly its flag or operate under its authority, as well as on 
ships that enter its ports, shipyards, or offshore terminals. 
Specifically, the Convention prohibits the presence on ships' 
hulls of anti-fouling systems that contain organotin compounds 
acting as biocides, unless the compounds have been sealed so 
that no leaching occurs. The United States would implement such 
obligations through new implementing legislation.

The Handling of Waste Resulting from the Application or Removal of 
        Harmful Anti-Fouling Systems

    Article 5 requires Parties to take ``appropriate measures'' 
within their territory to require that wastes from the 
application or removal of an anti-fouling system that contains 
organotin compounds acting as biocides are collected, handled, 
treated, and disposed of in a safe and environmentally sound 
manner to protect human health and the environment. The United 
States would implement this obligation through existing 
legislation. Specifically, certain wastes generated during the 
application and removal of anti-fouling paints may be 
considered hazardous wastes, due to their solvent and/or active 
ingredient content. Hazardous wastes are subject to Solid Waste 
Disposal Act requirements, including those addressing 
generation, transportation, treatment, storage, and 
disposal.\9\ In addition, section 301(a) of the Clean Water Act 
regulates the discharge of pollutants into the waters of the 
United States. Discharges from industrial facilities such as 
shipyards and dry-docks may be subject to permitting under the 
Clean Water Act. Such permits would establish technology-based 
effluent limits for discharges of pollutants from such 
facilities and, where necessary, any more stringent limits 
needed to achieve applicable water quality standards adopted by 
States or the EPA under the Clean Water Act.\10\
---------------------------------------------------------------------------
    \9\See 42 U.S.C. Sec. Sec. 6922, 6923, and 6924.
    \10\See 33 U.S.C. Sec. Sec. 1292 and 1311.
---------------------------------------------------------------------------

New Anti-Fouling Systems That Are Deemed Harmful Can Be Restricted 
        Through the Convention

    Article 6 provides a mechanism for adding new anti-fouling 
systems to the list of controlled anti-fouling systems in Annex 
1 if, after a comprehensive review process, such systems are 
determined to pose a potential for unreasonable risk of adverse 
effects on non-target organisms or human health. The Convention 
provides that the standing IMO Marine Environment Protection 
Committee would review such proposals. The United States has a 
permanent seat on the IMO Marine Environment Protection 
Committee by virtue of U.S. membership in the IMO and would 
therefore participate in this process, regardless of whether 
the United States joins the Anti-Fouling Convention.\11\ 
Nevertheless, it is necessary to be a Party to the Convention 
in order to have an effective voice in many of the decisions.
---------------------------------------------------------------------------
    \11\In accordance with Article 37 of the Convention on the 
International Maritime Organization, the Marine Environment Protection 
Committee shall consist of all the Members. The United States became a 
Member of the IMO in 1950 and according to testimony from the executive 
branch, the United States plays a ``strong and active role in this 
Committee.''
---------------------------------------------------------------------------
    If representatives of the Parties to the Convention sitting 
on the IMO Marine Environment Protection Committee decide that 
a more in-depth review is warranted, a technical group is 
established in accordance with Article 7 of the Convention to 
review the system.\12\ The technical group would ultimately 
report back to, among others, the Parties, the IMO, and the 
Committee. The Committee would then decide whether to approve 
any proposal to amend Annex 1 of the Convention, but only 
representatives of the Parties to the Convention sitting on the 
Committee could participate in making this decision. 
Ultimately, each Party decides through the amendment process 
set forth in Article 16 whether it wishes to be bound by the 
amended annex, as described further below.
---------------------------------------------------------------------------
    \12\Article 6(6) makes it clear that ``[o]nly Parties may 
participate in decisions taken by the committee described in paragraphs 
(3) and (5),'' and the decision as to whether a more in-depth review is 
warranted, is one that is covered in paragraph 3 and thus only Parties 
to the Convention sitting on the committee may participate.
---------------------------------------------------------------------------
    Section 10 of the proposed Anti-Fouling System Control Act, 
which has been submitted by the executive branch to Congress to 
implement the Convention, includes proposed rules to govern 
U.S. participation in the treaty mechanism provided for in 
Article 6 for adding new anti-fouling systems to Annex 1. Among 
other things, the legislation provides that ``[u]pon referral 
of any anti-fouling system to the technical group . . . for 
consideration of new or additional controls, the Secretary of 
State shall convene a public meeting of the Shipping 
Coordinating Committee, for the purpose of receiving 
information and comments regarding controls on such anti-
fouling system.''

Research and Technical Cooperation Regarding Anti-Fouling Systems

    Article 8 requires Parties to take ``appropriate measures'' 
to promote and facilitate scientific and technical research on 
the impact of anti-fouling systems on the environment. In 
addition, Article 8 also requires Parties to take ``appropriate 
measures'' to monitor the impact of anti-fouling systems and 
promotes the sharing of information between Parties on such 
things as scientific and technical activities undertaken in 
accordance with the Convention and other information regarding 
anti-fouling.
    Section 11 of the proposed Anti-Fouling System Control Act 
would implement this article by providing the EPA and the 
National Oceanic and Atmospheric Administration (NOAA) with the 
authority to ``undertake scientific and technical research and 
monitoring pursuant to Article 8 . . . .'' In addition, the 
Navy continues to research alternative anti-fouling systems 
that do not contain organotin, NOAA currently conducts 
monitoring of TBT concentrations as part of its ``Mussel 
Watch'' program, and the EPA generally requires research on the 
ecological effects of biocidal anti-fouling systems as a 
condition of their registration under FIFRA.\13\
---------------------------------------------------------------------------
    \13\See the Secretary of State's Letter of Submittal at VIII.
---------------------------------------------------------------------------

Certifying and Inspecting Ships, and Establishing Sanctions for 
        Violations to Ensure Compliance

    Article 10, in conjunction with Annex 4, requires a Party 
to ensure that certain ships entitled to fly that Party's flag 
or operate under its authority are surveyed and certified to 
ensure that each ship's anti-fouling system fully complies with 
the Convention. Article 11 provides that a ship to which the 
Convention applies may be inspected in any port, shipyard, or 
offshore terminal of a Party. Unless there are clear grounds 
for believing that a ship is in violation of the Convention, 
the inspection is to be limited to: 1) verifying that, where 
required, there is a valid onboard International Anti-fouling 
System Certificate or a Declaration on the Anti-Fouling System; 
and/or 2) a brief sampling of the ship's anti-fouling system, 
taking into account guidelines developed by the IMO. If there 
are clear grounds to believe that the ship is in violation of 
the Convention, a thorough inspection may be carried out, again 
taking into account IMO guidelines. Copies of these guidelines 
can be found in Annex II of this report. Further, Article 11 
provides that a Party may take steps to warn, detain, dismiss, 
or exclude from its ports a ship that is ``detected to be in 
violation'' of the Convention. Article 3, however, exempts 
warships, naval auxiliaries, and other ships owned or operated 
by a Party and used in governmental non-commercial service from 
the application of these (and other) provisions. Finally, 
Article 12 requires Parties to prohibit any violations of the 
Convention and to establish sanctions under domestic law 
``adequate in severity to discourage'' such violations. The 
proposed Anti-Fouling System Control Act would implement these 
requirements.

Dispute Resolution

    Article 14 of the Convention, provides that Parties shall 
settle any disputes concerning the interpretation or 
application of the Convention by peaceful means of their own 
choice, which may include, inter alia, mediation, conciliation, 
or negotiation.

                          IV. Entry Into Force

    With Panama's ratification of the Convention on September 
17, 2007, 25 States representing over 25 percent of the world's 
merchant shipping tonnage have now ratified the Convention and 
thus, in accordance with Article 18(1), the Convention will 
enter into force on September 17, 2008, for those States that 
have ratified the Convention. The Convention will enter into 
force for the United States three months after the date the 
United States deposits its instrument of ratification with the 
Secretary-General of the IMO.

                      V. Implementing Legislation

    Existing law, including the Solid Waste Disposal Act\14\ 
and the Clean Water Act,\15\ would be relied upon to implement 
aspects of this Convention; however, further legislation would 
be needed to allow the United States to comply with all of the 
Convention's obligations. Organotin-based anti-fouling systems 
are already regulated through OAPCA; however, the Act does not 
satisfy all of the Convention's requirements. For example, 
OAPCA only prohibits use of organotin-based anti-fouling paints 
on vessels under 25 meters in length (excluding aluminum hulls, 
outboard motors, and external drive units), while the 
Convention applies restrictions on the use of organotin-based 
anti-fouling systems more broadly, without regard to the length 
of a ship. On February 14, 2008, the executive branch submitted 
to Congress proposed legislation titled the ``Anti-Fouling 
System Control Act,'' which would replace OAPCA in its entirety 
and fully implement the Convention. The committee understands 
that the United States will not deposit its instrument of 
ratification until the legislation necessary to allow the 
United States to fully implement the Convention's obligations 
has been enacted.
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    \14\42 U.S.C. Sec. 6901 et seq.
    \15\33 U.S.C. Sec. 1251 et seq.
---------------------------------------------------------------------------

                          VI. Committee Action

    The committee held a public hearing on the Convention on 
July 10, 2008. Testimony was received from Ambassador David A. 
Balton, Deputy Assistant Secretary of State for Oceans and 
Fisheries. A transcript of this hearing can be found in Annex 
II to Executive Report 110-15.
    On July 29, 2008, the committee considered the Convention 
and ordered it favorably reported by voice vote, with a quorum 
present and without objection.

               VII. Committee Recommendation and Comments

    The Committee on Foreign Relations believes that the 
Convention would serve to protect the U.S. marine environment 
and U.S. ecosystems from the harmful effects of anti-fouling 
systems and in particular the hazardous leaching of organotin, 
a well-known biocide, in our ports and other waters. U.S. 
ratification and enactment of the proposed implementing 
legislation would together require foreign vessels entering 
U.S. ports, shipyards, or offshore terminals to stop using 
harmful anti-foulants containing organotins. Moreover, given 
that the United States has already implemented prohibitions 
against organotin use, widespread ratification of the 
Convention will help to create a level playing field for the 
U.S. anti-fouling paint industry. Finally, joining the 
Convention would permit the United States to participate in 
decisions on the inclusion of other harmful anti-fouling 
systems in the future. Accordingly, the committee urges the 
Senate to act promptly to give advice and consent to 
ratification of the Convention, as set forth in this report and 
the accompanying resolution of advice and consent.

                      A. AMENDMENTS TO THE ANNEXES

    Article 16 of the Convention sets forth procedures for 
amending the Convention and its annexes. There are four annexes 
to the convention: Annex 1--Controls on anti-fouling systems; 
Annex 2--Required elements for an initial proposal; Annex 3--
Required elements of a comprehensive proposal; and Annex 4--
Surveys and certification requirements for anti-fouling 
systems. In general, amendments to the Convention, including 
its annexes, are adopted by a two-thirds majority of the 
Parties present and voting. Amendments to the body of the 
Convention must be individually approved by each Party in order 
for them to enter into force for the approving Party. For 
amendments to an Annex other than Annex 1 of the Convention, 
Parties have a twelve-month period (unless the IMO Marine 
Environment Protection Committee decides on a different time 
period) after adoption, during which they can object to an 
amendment. If a Party does not object to such an amendment 
during the proscribed time period, that amendment will enter 
into force for that Party.
    An amendment to Annex 1, which contains a list of the anti-
fouling systems that are controlled by the Convention, would be 
handled in the same manner as an amendment to the other 
annexes; however, Parties are given the additional option of 
either 1) notifying the Secretary-General prior to entry into 
force of a particular amendment, that such an amendment shall 
enter into force for it only after a subsequent notification of 
its acceptance; or 2) making a declaration at the time it 
deposits its instrument of ratification or accession to the 
Convention that any amendment to Annex 1 shall enter into force 
for it only after notification to the Secretary-General of its 
acceptance of such amendment. The declaration included in the 
proposed resolution of advice and consent below would allow the 
United States to exercise the second option with respect to 
Annex 1 amendments, so that the executive branch would have 
time to transmit such amendments to the Senate for advice and 
consent. In the committee's view, any amendment to Annex 1 
would require the advice and consent of the Senate.
    The other three annexes of the Convention, however, are of 
a different nature. Annexes 2 and 3 provide procedural and 
technical details regarding what is needed for proposals to 
amend Annex 1, in accordance with the process set forth in 
Article 6 of the Convention. Specifically, Annex 2 lists the 
basic information a Party is to include in an initial proposal 
to amend Annex 1, which will be considered by the IMO Marine 
Environment Protection Committee. Should the IMO Marine 
Environment Protection Committee decide that further review of 
the proposal submitted with the information required by Annex 2 
is desirable, Annex 3 lists the elements needed for a more 
comprehensive proposal to amend Annex 1, as discussed in 
Article 6(3). Annex 4 similarly sets forth procedural 
regulations that would govern the survey and certification of 
ships under the Convention, as noted in Article 10 of the 
Convention. The committee recognizes that the tacit amendment 
procedure provided in Article 16 for amending these annexes 
makes it possible for the implementation of the Convention to 
evolve without going through a standard amendment process, 
which can take years to complete. Amendments to Annexes 2, 3, 
and 4 should not, in the normal course, rise to the level of 
those that require the advice and consent of the Senate. If 
there is any question, however, as to whether an amendment to 
any of these three annexes goes beyond the current mandate of 
the Annex being amended as described in Articles 6 and 10 or 
might require Senate advice and consent for some other reason, 
the committee expects the executive branch to consult with the 
committee in a timely manner in order to determine whether 
advice and consent is necessary. Moreover, the committee 
expects that under such circumstances, the executive branch 
will make appropriate use of the objection procedure described 
above to prevent an amendment from entering into force for the 
United States before the conclusion of consultations on whether 
Senate advice and consent is necessary.

                             B. RESOLUTION

    The committee has included in the resolution of advice and 
consent two proposed declarations; only one of them would be 
included in the instrument of ratification. Both are discussed 
briefly below.

First Declaration

    This proposed declaration is contemplated in Article 16 of 
the Convention and essentially mandates that any amendments to 
Annex 1 of the Convention that have been adopted by States 
Parties would enter into force for the United States if and 
only if the United States notifies the Secretary-General of the 
IMO that it will accept the amendment. This declaration was 
recommended by the executive branch and would ultimately be 
included in the U.S. instrument of ratification. As noted above 
in the discussion regarding amendments to the annexes of the 
Convention, this declaration would be made in order to be sure 
that the executive branch would have time to transmit any such 
amendments to Annex 1 of the Convention to the Senate for 
advice and consent.

Second Declaration

    This second proposed declaration states that the Convention 
is not self-executing. The Senate has rarely included 
statements regarding the self-executing nature of treaties in 
resolutions of advice and consent, but in light of the recent 
Supreme Court decision, Medellin v. Texas, 128 S.Ct. 1346 
(2008), the committee has determined that a clear statement in 
the resolution is warranted. A further discussion of the 
committee's views on this matter can be found in Section VIII 
of Executive Report 110-12.

         VIII. Resolution of Advice and Consent to Ratification

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO TWO DECLARATIONS

    The Senate advises and consents to the ratification of the 
International Convention on the Control of Harmful Anti-Fouling 
Systems on Ships, adopted on October 5, 2001 (Treaty Doc. 110-
13), subject to the declaration of section 2 and the 
declaration of section 3.

SECTION 2. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration, which shall be included 
in the instrument of ratification:

          The United States of America declares that, pursuant 
        to Article 16(2)(f)(ii)(3) of the Convention, 
        amendments to Annex 1 of the Convention shall enter 
        into force for the United States of America only after 
        notification to the Secretary-General of its acceptance 
        with respect to such amendments.

SECTION 3. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:
          This Convention is not self-executing.