Stockholm Convention on Organic Pollutants Senate Consideration of Treaty Document 107-5
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[Senate Treaty Document 107-5] [From the U.S. Government Publishing Office] 107th Congress Treaty Doc. SENATE 2d Session 107-5 _______________________________________________________________________ STOCKHOLM CONVENTION ON ORGANIC POLLUTANTS __________ MESSAGE from THE PRESIDENT OF THE UNITED STATES transmitting STOCKHOLM CONVENTION ON PERSISTENT ORGANIC POLLUTANTS, WITH ANNEXES, DONE AT STOCKHOLM, MAY 22-23, 2001 May 7, 2002.--Convention was read the first time, and together with the accompanying papers, referred to the Committee on Foreign Relations and ordered to be printed for the use of the Senate __________ U.S. GOVERNMENT PRINTING OFFICE 99-118 WASHINGTON : 2002 LETTER OF TRANSMITTAL ---------- The White House, May 6, 2002. To the Senate of the United States: With a view to receiving the advice and consent of the Senate to ratification, I transmit herewith the Stockholm Convention on Persistent Organic Pollutants, with Annexes, done at Stockholm, May 22-23, 2001. The report of the Secretary of State is also enclosed for the information of the Senate. The Convention, which was negotiated under the auspices of the United Nations Environment Program with the leadership and active participation of the United States, commits Parties to take significant steps, similar to those already taken by the United States, to eliminate or restrict the production, use, and/or release of 12 specified persistent organic pollutants (POPs). When I announced that the United States would sign the Convention, I noted that POPs chemicals, even when released abroad, can harm human health and the environment in the United States. The Convention obligates Parties to take measures to eliminate or restrict the production, use, and trade of intentionally produced POPs, to develop action plans to address the release of unintentionally produced POPs, and to use best available techniques to reduce emissions from certain new sources of unintentionally produced POPs. It also includes obligations on the treatment of POPs stockpiles and wastes, as well as a science-based procedure to add new chemicals that meet defined criteria. The United States, with the assistance and cooperation of nongovernmental organizations and industry, plays an important international leadership role in the safe management of hazardous chemicals and pesticides. This Convention, which will bring over time, an end to the production and use of certain of these toxic chemicals beyond our borders, will positively affect the U.S. environment and public health. All relevant Federal agencies support early ratification of the Convention for these reasons, and we understand that affected industries and interest groups share this view. I recommend that the Senate give prompt and favorable consideration to the Convention and give its advice and consent to ratification, subject to the understandings described in the accompanying report of the Secretary of State, at the earliest possible date. George W. Bush. LETTER OF SUBMITTAL ---------- August 1, 2001. The President, The White House. The President: I have the honor to submit to you the Stockholm Convention on Persistent Organic Pollutants, with Annexes, done at Stockholm, May 22-23, 2001. In accordance with your announcement on April 19, the United States signed the Convention, subject to ratification, on May 23, 2001, along with 90 other States. I recommend that the Convention be transmitted on a priority basis to the Senate for its advice and consent to ratification. Chemical synthesis and production advances have been responsible for many important benefits currently enjoyed by modern society. However, as scientific knowledge about these substances has increased, it has become clear that the continued production and use of certain chemicals and pesticides with particular traits carries with it inherent risks and poses both environmental and health hazards. The chemicals of global concern that are the subject of this Convention are often referred to as persistent organic pollutants (POPs). These harmful chemicals share four basic characteristics that cause them to adversely affect human health and the environment: (1) they are toxic; (2) they persist in the environment for long periods of time; (3) they circulate globally through the atmosphere and oceans to regions far from their source of origin; and (4) they biomagnify as they move up through the food chain, accumulating in the fatty tissue of higher organisms, including in other foods consumed by Americans. There is evidence of continuing transboundary deposition of POPs chemicals far from their sources. Indigenous people in Alaska and elsewhere in the United States are particularly at risk due to their reliance on a subsistence diet. This Convention will reduce or eliminate certain POPs that continue to be released outside the United States and which pose a threat to U.S. public health and the environment. The United States has already taken substantial action to address the risks associated with those POPs chemicals currently covered by the Convention. Many other countries, including some developing countries, have also taken steps to address these risks. Nonetheless, certain of these chemicals continue to be used and produced, mostly in developing countries. The Convention commits Parties to take significant steps, similar to those already taken by the United States, to eliminate or restrict the production, use and/or release of specified POPs. It initially identifies twelve chemicals, often referred to as the ``dirty dozen.'' Several of these are intentionally produced for use either as pesticides or industrial chemicals (e.g., DDT); some are produced and released as incidental byproducts of other processes (e.g., dioxin). Under the Convention, all of the intentionally produced POPs except DDT are slated for elimination of production and use. In recognition of the humanitarian need to use DDT for disease vector control, notably to fight malaria, the Convention allows its use for this purpose, while encouraging the development of effective and economically viable alternatives. The Convention obligates Parties to develop action plans to address the release of byproduct POPs and to use best available techniques to reduce emissions from certain new sources of such POPs. It also imposes controls on the handling of POPs wastes and on trade in POPs chemicals. Additionally, it includes a science-based procedure to add new chemicals that meet defined criteria to the lists of POPs subject to the Convention. The Convention does not differentiate in its basic obligations between developing and developed countries. The Convention does establish a flexible framework to provide technical and financial assistance to help developing countries implement their commitments. The United States played a leading role in negotiating the Convention, which was developed under the auspices of the United Nations Environment Program (UNEP). Throughout the negotiations, the Department of State and interested Federal agencies, including the Environmental Protection Agency (EPA), theDepartment of Commerce, the United States Trade Representative, the Department of Health and Human Services, and the Department of Agriculture, consulted with the Congress, industry and environmental organizations. The relevant Federal agencies support expeditious ratification of the Convention by the United States. The Convention has the strong support of U.S. industry and environmental organizations. The following analysis reviews the Convention's key provisions and sets forth the proposed understandings of the United States with respect to several elements. Preamble The preamble highlights the key reasons for global action on Persistent Organic Pollutants (POPs), including their capacity for long-range transport and bioaccumulation; their potential negative effects on human health and the environment, and the particular risks they pose for developing countries, Arctic ecosystems, indigenous communities (through POPs contained in their traditional foods), women and, through them, future generations. The preamble also includes language on precaution, which is consistent with the U.S. view that the Convention embodies a precautionary approach to protect health and the environment. article 1--objective Article 1 identifies the objective of the Convention: to protect human health and the environment from persistent organic pollutants. article 2--definitions There are only three definitions in this Article: ``Party''; ``Regional economic integration organization''; and ``Parties present and voting''. These definitions are self- explanatory and consistent with usage in other multilateral environmental agreements to which the United States is a party. It should be noted that, with respect to obligations that require Parties to take action on chemicals listed in Annexes A, B or C, the term ``Party'' includes only those Parties that are bound by particular listings for chemicals that are added in the future. In order to make this definition clear, it is recommended that the following understanding be included in the U.S. instrument of ratification: The United States understands that the term ``Party'' as defined in Article 2 includes only those Parties that are bound by particular listings for chemicals that are added in the future to Annexes A, B or C with respect to the obligations to take action on those chemicals. article 3--measures to reduce or eliminate releases from intentional production and use Article 3, together with Annexes A and B, contains core obligations in the Convention regarding controls and intentionally produced POPs chemicals. Paragraph 1 requires each Party to ``[p]rohibit and/or take the legal and administrative measures necessary to eliminate'' the production and use of chemicals listed in Annex A, and to ``restrict'' production and use of chemicals listed in Annex B. Annexes A and B include 10 intentionally produced pesticides and industrial chemicals. Aldrin, chlordane, dieldrin, endrin, heptachlor, hexachlorobenzene, mirex, toxaphene, and PCBs are placed in Annex A. DDT is placed on Annex B. Time-limited country-specific exemptions are allowed for the use, production and trade of some chemicals in Annex A. There are also certain general exemptions for chemicals listed on Annexes A and B, and language addressing the special case of PCBs in Annex A and DDT in Annex B, described below. The United States is in large part already fulfilling the obligations in paragraph 1, either because it has taken the legal and administrative measures necessary to eliminate production and use of the listed chemicals, or because nearly all production and use of these chemicals have otherwise ceased. For example, none of the listed chemicals are currently registered under U.S. law for use as pesticides in the United States. At the same time, certain limitations to the existing authorities under the main U.S. statutes in this area--namely, the Federal Insecticide, Fungicide, and Rodenticide Act (``FIFRA''), 7 U.S.C. Sec. 136 et. seq., and the Toxic Substances Control Act (``TSCA''), 15 U.S.C. Sec. 2601 et seq.--exist with regard to implementation of discrete obligations in Article 3. For example, U.S. law currently does not provide unambiguous authority to prevent production of all POPs chemicals for export. In addition, two of the listed POPs chemicals (DDT and HCB) theoretically are eligible for production under TSCA under certain circumstances without prior notice, although no such production is known to occur in the United States. New production and use of the other listed POPs chemicals theoretically could be proposed in the future, and their prohibition cannot be guaranteed under existing law. Targeted, legislative authority therefore will be sought to ensure the U.S. ability to implement in full the obligations on all production and use of the listed POPs. Paragraph 2 places restrictions on the import and export of chemicals listed in Annexes A and B. Paragraph 2(a) requires each Party to take measures to ensure that a chemical is imported only for environmentally sound disposal or for a use or purpose permitted under Annex A or B. Paragraph 2(b) restricts exports both to other Parties and to non-Parties to the Convention. Annex A and B chemicals can be exported only: (i) for environmentally sound disposal; (ii) to another Party permitted to use the chemical under Annexes A or B; or (iii) to a State not Party to the Convention, provided that the non- Party has provided an annual certification to the exporting Party. That certification must address the non-Party's intended use of the chemical and its commitment to minimize or prevent releases of the chemical and to dispose of any wastes in an environmentally sound manner. In addition, exports of chemicals listed in Annex A are prohibited to both Parties and non- Parties, except for environmentally sound disposal, once there are no longer any specific exemptions in effect for any Party regarding that chemical. The United States presently is unaware of any U.S. production or export of the listed POPs chemicals that conflicts with Article 3 obligations. Nevertheless, additional legislative authority is required to ensure the United States' ability to implement effectively the export-related obligations in paragraph 2. As noted above, for example, FIFRA does not provide authority to prohibit all exports of POPs pesticides from the United States. Additional authority will also be sought to address certain narrow exceptions in FIFRA and TSCA with respect to the import-related obligations in paragraph 2. Paragraph 3 requires each Party that has regulatory and assessment schemes for new pesticides or industrial chemicals to take measures to regulate, with the aim of preventing, the production and use of new POPs. The United States will implement this obligation through measures, including some that are already in place, aimed at preventing new persistent, bioaccumulative, and toxic (``PBT'') chemicals from entering commerce. Paragraph 4 requires Parties that have regulatory and assessment schemes for chemicals currently in use to take into consideration, ``where appropriate,'' Annex D criteria when assessing such pesticides or chemicals. (Annex D sets out criteria for listing a new POPs chemical, which consist of persistence, bioaccumulation, potential for long-range environmental, transport, and toxicity.) The United States is already fulfilling this requirement under existing programs and EPA may under its current authorities expand the extent to which it takes such factors into account when assessing existing chemicals or pesticides. Paragraph 5 provides that the control measures on production, use, and import and export set out in paragraphs 1 and 2 do not apply to chemicals used for lab-scale research or as a reference standard. Paragraph 6 requires any Party that takes a specific exemption under Annexes A or B, or uses a chemical under an allowable purpose under Annex B, to ``take appropriate measures'' to prevent or minimize human exposure and release into the environment of that POP during its production and use. The United States does not intend to seek a specific exemption orutilize an allowable purpose for any of the currently listed chemicals. article 4--register of specific exemptions As noted above, any State may, upon becoming a Party and by notification to the Secretariat, register for one or more types of specific exemptions listed in Annex A or B. The purpose of such exemptions is to allow individual countries to take specific exemptions according to particular needs that might otherwise prevent them from joining the Convention, without the need for more categorical differential of obligations among Parties. The United States does not anticipate the need to submit any registrations for specific exemptions for the substances currently in the POPs Convention. Article 4 establishes a Register to identify Parties that have taken such specific exemptions. It also specifies the process for new registrations, and for their withdrawal and termination. Importantly, it also provides that all registrations will be subject to a review process, the details of which will be developed at the first meeting of the Conference of the Parties (``COP''). Unless an earlier date is indicated in the Register by a Party, or an extension is granted by the COP, registrations of specific exemptions shall expire five years after the date of entry into force of the obligation with respect to a particular chemical. Paragraph 1 specifies that these procedures do not apply to provisions in Annex A or Annex B that may be exercised by all Parties. This includes, for example, provisions regarding use of PCBs in Part I and Part II of Annex A, provisions regarding chemicals that occur in articles manufactured or already in use, and provisions that allow Parties to use a chemical as a closed-system, site-limited intermediate in the production of other chemicals. The Article also does not apply to ``acceptable purposes'' identified in Annex B (at present limited to DDT). Paragraph 9 is an important ``sunset'' provision, providing that once there are no longer any Parties registered for a particular specific exemption, no new registrations for that exemption may be made. article 5--measures to reduce or eliminate releases from unintentional production Article 5 contains obligations with respect to releases of chemicals listed in Annex C, and includes a goal of ``continuing minimization and, where feasible, ultimate elimination.'' This is consistent with existing U.S. law under the Clean Air Act, 42 U.S.C. Sec. 7401 et seq., and the Clean Water Act, 33 U.S.C. Sec. 1251 et seq. With respect to the term ``feasible,'' negotiators agreed that this term included both technical and economic considerations. Paragraph (a) requires development by each Party of an action plan addressing releases of Annex C chemicals. The plan must include, among other things, development of source inventories and release estimates. The United States has existing authority to develop such inventories under the Clean Air Act, which is routinely used for developing inventories and release estimates of the kind described in this paragraph, and under the Clean Water Act with respect to releases of the pollutants to waters of the United States. Paragraph (b) requires each Party to promote measures to achieve meaningful reduction in POPs releases or in elimination of sources of POPs releases. The United States will implement this obligation through the Pollution Prevention Act, 42 U.S.C. Sec. 13101 et seq., which already requires EPA to establish a source reduction program and engage in other activities that promote reduction of releases. Paragraph (c) requires each Party to promote the use of substitute or modified materials, products and processes to prevent formation and release of Annex C chemicals. The United States will implement this obligation through the Pollution Prevention Act, which currently authorizes the promotion of reduction of sources of POPs releases through ``technology modifications, process or procedure modifications, reformulation or redesign of products, substitution of raw materials,'' as wellas through other authorities already provided in the Clean Air Act and Clean Water Act. Paragraph (d) requires each Party to require the use of best available techniques (``BAT'') for new sources it identifies as warranting such action in its action plan, and in any case for new sources in the categories listed in Part II of Annex C (for example, municipal waste combustors), no later than four years after entry into force of the Convention for that Party. The United States already has sufficient authority under the Clean Air Act, with respect to emissions to air, and under the Clean Water Act, with respect to discharges to water, to implement these obligations. In most cases, moreover, the United States has regulations already in place for these source categories that will fully implement the BAT requirement. Paragraph (e) applies an obligation ``to promote'' the use of BAT on existing sources in the categories listed in Part II, as well as to such other categories of new and existing sources to the extent that a Party identifies the need for action regrading these sources as part of this action plan. Those additional categories may include categories listed in Part III if the United States considers them appropriate for inclusion. The United States already has sufficient existing statutory authority with respect to all of the required source categories (i.e., those listed in Part II), as well as most of the additional source categories under Part III, under the Clean Air Act and Clean Water Act. Paragraph (f) provides definitions of the terms ``best available techniques,'' ``best environmental practices'' and ``new source.'' These definitions are consistent with U.S. law. Paragraph (g) allows Parties to use ``release limit values'' or ``performance standards'' in place of best available techniques. This paragraph provides an alternative means to satisfy the requirements under paragraphs (d), (e) and (f). article 6--measures to reduce or eliminate releases from stockpiles and wastes Article 6, which contains obligations regarding the treatment of POPs wastes, generally requires that Parties take certain specified measures to ensure that such wastes are managed in a manner protective of human health and the environment. The United States has sufficient existing authority under FIFRA, TSCA, the Comprehensive Environmental Responsibility, Compensation and Liability Act, 42 U.S.C. Sec. 9601 et seq., and the Resource Conservation and Recovery Act, 42 U.S.C. Sec. 6901 et seq., (``RCRA'') to implement almost all of the obligations in Article 6. Paragraph 1(a) requires each Party to develop ``appropriate strategies'' for identifying both stockpiles containing chemicals in Annexes A or B, and also products and articles in use, and wastes, containing chemicals in Annexes A, B or C. To the extent that stockpiles containing chemicals in Annexes A or B exist in the United States, the United States is already implementing strategies to identify them through existing policy programs (for example, the ``Clean Sweeps'' program). The United States can also implement this obligation through authority under FIFRA section 6(g) and TSCA section 8(a), which provide authority to require certain persons to notify EPA of their possession and respective amounts of certain cancelled pesticides and other chemicals. Paragraph 1(b) requires each Party to identify ``to the extent practicable'' and ``on the basis of the strategies referred to in paragraph 1(a),'' stockpiles containing chemicals listed in either Annex A or B. The United states will implement this obligation using the authorities noted above. Paragraph 1(c) requires the appropriate management of stockpiles in a safe, efficient and environmentally sound manner. Existing U.S. laws, notably FIFRA section 19(a) and TSCA section 6, provide sufficient authority for the United States to implement this obligation through labeling and other means to ensure that stockpiles of pesticides and industrial chemicals listed in Annex A or B are handled, transported, and stored in an environmentally sound manner. This paragraph also provides that stockpiles, once they are no longer permitted to be used orexported in accordance with other provisions of the Convention, shall be deemed to be waste subject to paragraph (1)(d). Paragraph 1(d)(i) requires each Party to take appropriate measures for the treatment of wastes containing or contaminated with a chemical listed in Annex A, B or C. It requires that such POPs wastes be handled, collected, transported and stored in an environmentally sound manner. The United States will implement these obligations through existing waste disposal requirements in place under RCRA and TSCA. Paragraph 1(d)(ii) requires each Party to take appropriate measures so that POPs wastes are treated using destruction or irreversible transformation, or otherwise disposed of in an environmentally sound manner when destruction or irreversible transformation does not represent the environmentally preferable option or the POPs content is low. The United States will implement these obligations through existing waste disposal requirements in place under RCRA and TSCA. Paragraph 1(d)(iii) requires that POPs wastes must not be permitted to be subject to operations that may lead to the recycling, recovery or alternative use of the POPs content. The United States is not aware of any existing operations involving the recycling or recovery of POPs in the United States. There is nothing in current U.S. law, however, that clearly authorizes the regulation of POPs wastes in accordance with this obligation. To guarantee that the United States will be able to implement effectively this obligation, additional legislative authority will be sought to address recycling and recovery of POPs chemicals under FIFRA and TSCA authorities. Paragraph 1(d)(iv) requires that POPs wastes must not be exported or imported without taking into account relevant international standards. The United States already has in place requirements that will fulfill this obligation. For example, EPA has established requirements under RCRA for the export (including transport) of hazardous wastes such that exporters and transporters must comply with requirements of international agreements between the United States and receiving countries. Paragraph 1(e) requires each Party to endeavor to develop appropriate strategies for identifying sites contaminated by chemicals listed in Annex A, B or C. It does not require remediation of sites, but requires that, if undertaken, it be performed in an environmentally sound manner. The United States already has existing authority under RCRA and CERCLA to develop appropriate strategies for identifying sites contaminated by chemicals listed in these annexes, and to ensure that necessary remediation will be performed in an environmentally sound manner. Paragraph 2 directs the COP to cooperate with the appropriate bodies of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal to develop certain guidance relating to the handling of POPs waste. Paragraph 2(c) calls on the COP to work to establish, in cooperation with the Basel COP, ``as appropriate,'' the concentration levels of the chemicals listed in Annexes A, B and C in order to define the low POP content referred to in paragraph 1(d). The criteria of what constitutes ``low'' POP content is an important factor in determining whether ``other disposal'' is permitted under paragraph 1(d). The United States does not interpret paragraph 2(c), however, as giving a mandate to the COP to set a definition of the term ``low'' that would be binding on Parties through paragraph 1(d): indeed, paragraph 1(d) makes it clear that meaning of ``low'' is to be determined ``taking into account international rules, standards and guidelines, including those that may be developed pursuant to paragraph 2. * * * '' In order to clarify and emphasize this view, it is recommended that the following understanding be included in the U.S. instrument of ratification: It is the understanding of the United States of America that any work completed by the Conference of the Parties under paragraph 2(c) of Article 6 would not be considered binding on Parties, but rather would constitute non-binding guidance on the meaning of the term ``low'' that Parties would take into account in accordance with paragraph 1(d) of Article 6. article 7--implementation plans The Article calls upon Parties to develop and endeavor to implement a plan to implement its obligations under the Convention, and contains provisions regarding the transmittal,review and update of such plans. Plans are required to be submitted within two years of entry into force of the Convention for that Party. It also states that Parties shall, wherever appropriate, cooperate directly or through global, regional and subregional organizations, and consult with their national stakeholders to facilitate the development, implementation and updating of the implementation plans. article 8--listing of chemicals in annexes a, b and c As noted above, the Convention is intended to be a dynamic instrument, under which additional chemicals that meet certain key criteria may be added to the regime in the future. Article 8, together with Annexes D, E and F and Article 22 (on amendments to annexes), set out the procedure by which those additional chemicals will be considered and added. Paragraphs 1 and 2 set out the procedure for proposing the addition of a new chemical and the Secretariat's initial information screening process. Paragraphs 3 and 4 set forth the process by which the Persistent Organic Pollutant Review Committee (the Committee) reviews whether the proposal satisfies the screening criteria in Annex D. The criteria are: persistence, bioaccumulation, toxicity, long-range transport, and evidence of adverse effects. The Committee shall review and apply the proposal ``in a flexible and transparent way, taking all information provided into account in an integrative and balanced manner.'' If the Committee believes that the screening criteria are satisfied, it makes the proposal available and invites Parties and observers to submit information specified in Annex E (concerning risk). If not, the Committee sets the proposal aside. Paragraph 5 allows any Party to resubmit a proposal that the Committee has set aside under paragraph 4. If the Committee sets it aside again, the Party may appeal that decision to the COP. The COP may then decide, ``based on the screening criteria in Annex D'' and taking other information into account, that the proposal shall proceed. This formulation was sought by the United States in order to tie the COP's decision to the scientific criteria. Paragraph 6 provides for a further review of proposals that proceed beyond the screening stage. The Committee prepares a draft risk profile in accordance with Annex E, makes that draft available and receives comments on it, and then completes the risk profile. Paragraph 7 sets out a key decision point for the Committee: on the basis of the risk profile, the Committee must decide whether ``the chemical is likely as a result of its long-range environmental transport to lead to significant adverse human health and/or environmental effects such that global action is warranted.'' If the Committee so decides, the proposal shall proceed to the next stage: a risk management review in accordance with Annex F, including an evaluation of the possible associated control measures for the chemical, as well as costs and alternatives. If the Committee decides that the chemical does not meet this standard, the proposal is set aside. The text provides that ``[l]ack of full scientific certainty shall not prevent the proposal from proceeding.'' This provision merely allows the Committee to conclude that ``global action is warranted'' such that the proposal should proceed to the risk management review, even where it lacks ``full'' scientific certainty. It does not allow the Committee to move forward where it lacks any scientific certainty; it must still determine that the chemical is ``likely as a result of its long-range environmental transport to lead to significant adverse human health and/or environmental effects.'' This formulation is consistent with risk-based decision-making by chemical regulators under existing U.S. law. Paragraph 8 provides an appeal process for Parties similar to that in paragraph 5. If, following this process, the Committee sets the proposal aside once again, the Party may appeal the decision to the COP, which ``based on the risk profile'' may decide the proposal shall proceed to a risk management review. Paragraph 9 provides that the Committee shall, ``based on the risk profile * * * and the risk management evaluation,'' make a recommendation whether the chemical should be listed inAnnexes A, B and/or C. In the end, the COP, ``taking the account of the recommendations of the Committee, including any scientific uncertainly, shall decide, in a precautionary manner'' whether to list the chemical and associated control measures. This is consistent with U.S. approaches to precaution in chemicals regulation, which provide for risk management decisions even when there is lack of full scientific certainty. ARTICLE 9--INFORMATION EXCHANGE Article 9 requires Parties to ``facilitate or undertake'' the exchange of information relevant to the reduction or elimination of production, use, and release of POPs and on alternatives to POPs. Paragraph 5 provides further that information on the health and safety of humans and the environment is not confidential, but that Parties that exchange other information shall protect any confidential information as mutually agreed. Because this Article does not require the exchange of any information, it does not conflict with U.S. law regarding the protection of confidential business information (``CBI''). ARTICLE 10--PUBLIC INFORMATION, AWARENESS AND EDUCATION Article 19 contains a number of obligations to promote and facilitate the provision of available POPs-related information to the public. Most of these provisions are obligations that the United States already is implementing through various public awareness campaigns and programs. Paragraph 2 requires each Party ``within its capabilities'' to ensure that the public has access to ``the public information'' referred to in paragraph 1. Paragraph 1 concerns ``available information persistent organic pollutions.'' Although release of all available information on POPs could theoretically require release of certain health and safety information that would be protected as CBI under U.S. law, the obligation in paragraph 2 applies only to ``the public information referred to in paragraph 1.'' (emphasis added) Thus, this requirement excludes CBI data, which is not public. Paragraph 5 requires Parties to give sympathetic consideration to developing mechanisms for the collection and dissemination of information on estimates of annual quantities of POPs released or disposed. EPA, with its Toxic Release Inventory (TRI) program, requires release and disposal reporting on most of the Annex A, B and C chemicals. ARTICLE 11--RESEARCH, DEVELOPMENT AND MONITORING Article 11 requires the Parties collectively, at the national and international level, to encourage or undertake ``appropriate research, development, monitoring and cooperation pertaining to'' POPs. The United States, through existing research programs and international cooperation programs, is already undertaking or providing support for POPs research, cooperation and monitoring. ARTICLE 12--TECHNICAL ASSISTANCE Article 12 concerns the provision of technical assistance to developing country Parties and Parties with economies in transition to help them implement their obligations under the Convention. Paragraph 3 specifies that the technical assistance to be provided, ``as appropriate and as mutually agreed,'' by developed country Parties shall include assistance for capacity-building related to implementation of the obligations under the Convention. This language gives developed country Parties considerable flexibility to decide the scope of their collective technical assistance obligation. Paragraph 5 obligates the Parties collectively to establish ``arrangements,'' including centers for capacity-building and transfer of technology. The United States will implement its obligations under this article through a range of ongoing bilateral and multilateral aid and assistance programs, including, for example, programs administered by USAID, EPA and other agencies, as well as through contributions to the Global Environment Facility (GEF) and other multilateral organizations. Such programs and contributions will require appropriations. ARTICLE 13--FINANCIAL RESOURCES AND MECHANISMS This article, and paragraph 2 in particular, reflect the commitment of developed country Parties collectively to provide financial resources to assist developing country Parties to meet their commitments under the Convention. This obligation is qualified in significant respects. Developed country Parties as a collective are to provide ``new and additional'' financial resources to meet the agreed full incremental costs of implementing measures by developing country Parties which fulfill their obligations under the Convention. Both the costs and the implementing measures must be agreed between the recipient Party and an entity participating in the mechanism established in paragraph 6. The mechanism in paragraph 6 will consist of, at least for an interim period, the GEF. Paragraph 6 also reiterates the requirement of paragraph 2 that contributions to the mechanism be ``additional'' to other financial transfers. Paragraph 7 provides that the COP shall provide guidance to the mechanism regarding policies for access to financial resources, promotion of multiple-source funding, and modalities for determining the amount of funding necessary and available to implement the Convention, and for providing Parties with assistance for needs assessment. The Convention does not create either a new fund or mandate the funding of recurrent and non-incremental costs, and does not establish new or specific assessments. The United States will implement this obligation through its contributions to the GEF and other multilateral, regional and bilateral entities that provide financial assistance. Such contributions will require an appropriation. ARTICLE 14--INTERIM FINANCIAL ARRANGEMENTS Article 14 provides that the GEF shall be the principal entity entrusted with the operations of the Article 13 financial mechanism on an interim basis. It or another entity could have this role permanently by a decision of the COP. ARTICLE 15--REPORTING Article 15 requires generally that each Party report on measures it has taken to implement the provisions of this Convention, as well as their effectiveness. It requires reporting of certain statistical data, or reasonable estimates thereof, on production and trade. ARTICLE 16--EFFECTIVENESS EVALUATION This article provides for a periodic evaluation by the COP of the Convention's effectiveness, based on monitoring arrangements to be initiated at the first COP. The monitoring arrangements are intended to give the COP comparable monitoring data on the presence and transport of the listed POPs, and should use existing monitoring programs and mechanisms to the extent possible. The United States is already participating in several global monitoring and research initiatives that could provide monitoring data to be used under Article 16. ARTICLE 17--NON-COMPLIANCE Article 17 instructs the COP ``as soon as practicable'' to establish mechanisms and procedures for determining non- compliance with the Convention's obligations and for the treatment of Parties found to be in non-compliance. Article 17 is typical of non-compliance provisions contained in several multilateral environmental agreements to which the United States is a Party. ARTICLE 18--SETTLEMENT OF DISPUTES This article provides that the Parties shall settle disputes through negotiation or other peaceful means. Consistent with many recent environmental agreements, this article also provides for mandatory recourse, at the request of one party to a dispute, to non-binding conciliation. Procedures for this non-binding process will be elaborated in an annex to be adopted by the COP. In addition, paragraph 2 provides that a Party may declare with respect to Parties that have made similar declarations that it is prepared to submit to compulsory dispute settlement by arbitration or before the International Court of Justice.Consistent with prior practice, it is recommended that the United States not make such a declaration. ARTICLE 19--CONFERENCE OF THE PARTIES Article 19 establishes a COP, consistent with the standard practice in multilateral environmental agreements. Paragraph 4 instructs the COP to adopt rules of procedure and financial rules for itself and for any subsidiary bodies by consensus. Paragraph 6 instructs the COP to establish a subsidiary body at its first meeting, the Persistent Organic Pollutants Review Committee, to perform the specific functions conferred upon the committee under the Convention. It provides that the Committee shall make every effort to adopt its recommendations by consensus, but at a last resort shall adopt its recommendations by a two-thirds majority vote. ARTICLE 20--SECRETARIAT Article 20 establishes the Secretariat, delineates its functions, and specifies that the functions of the Secretariat are to be performed by the Executive Director of UNEP unless the COP decides otherwise. ARTICLE 21--AMENDMENTS TO THE CONVENTION Article 21 contains provisions that are common to several international environmental agreements to which the United States is a party. Paragraph 1 states that any Party may propose amendments to the Convention. Paragraph 2 provides that amendments shall be adopted at a meeting of the COP provided that they have been circulated to all parties at least six months in advance of the meeting. Paragraph 3 requires that Parties must endeavor to reach agreement on the proposed amendment by consensus. When consensus cannot be reached, it requires a vote to adopt by a three-fourths majority of the Parties present and voting. Paragraph 4 requires amendments to be communicated to the Depositary. Paragraph 5 provides that an amendment shall enter into force for those Parties that have accepted it, ninety days after it has been accepted by at least three-fourths of the Parties. Thereafter, it enters into force for any other Party ninety days after that Party deposits its instrument of ratification, acceptance or approval of the amendment. ARTICLE 22--ADOPTION AND AMENDMENT OF ANNEXES Article 22 covers the process for amending the Convention's annexes and adding new annexes. As noted above, it is an important element of the process for adding new POPs chemicals to the Convention. Paragraphs 1 and 2 of Article 22 provide that the annexes form an integral part of the Convention and restrict any additional annexes to ``procedural, scientific, technical or administrative matters.'' Paragraph 3 sets out the procedure for adding additional annexes to the Convention. It provides that the procedure for proposal and adoption of such annexes shall be identical to that for adoption of amendments to the Convention (i.e., all efforts at consensus, or at a minimum three-fourths majority to adopt an additional annex). However, new annexes will enter into force through an ``opt-out'' procedure: once adopted, the annex will bind all Parties one year after adoption, except for those Parties that have submitted, during that year, a notification of non-acceptance. As noted below, however, paragraph 6 provides that, if the adoption of a new annex is linked to an amendment of the Convention, the annex will enter into force when the related amendment enters into force. Paragraph 4 sets forth a special procedure for the proposal, adoption and entry into force of amendments to Annexes A, B, or C; these are the annexes that list the chemicals covered by the convention and set out the related control obligations. (Note: additional requirements for proposing amendments to list a new chemical in these Annexes are found in Article 8.) These amendments are to be proposed and adopted in the same manner as adding a new annex (i.e., requiring all efforts to achieve consensus or, at a minimum, a three-fourths majority to adopt the amendment). Once they are adopted, amendments to add new chemicals will enter into force for all Parties one year later, except in two cases: (1) where, as with new annexes, a Party has notified the depositary within that one-year period that it does not accept the amendment (i.e., invokes an ``opt-out'' procedure); or (2) where a Party has made a declaration, at the time it deposits its instrument of ratification in accordance with Article 25(4), that any amendment to Annexes A, B or C shall enter into force for it only upon its affirmative acceptance of that new obligation (i.e., it invokes a Party-specific ``opt-in'' procedure). The second alternative above, which was sought by the United States, creates an optional Party-specific ``opt-in'' approach for the addition of new chemicals. In the absence of its express consent, a Party that has made such a declaration is not bound by any new listing. Paragraph 5 sets forth a different procedure for the proposal, adoption, and entry into force of amendments to Annexes D, E and F. These are the annexes that set out the criteria and information requirements governing the process for listing new chemicals. These criteria must apply equally to all Parties: the Committee could not properly carry out its responsibilities, thus jeopardizing the effectiveness of the Convention, if different Parties had agreed to different listing criteria. Accordingly, more traditional amendment procedures that allow parties to accept or reject particular amendments would not work in these cases. Therefore, the Convention provides for amendment of these annexes only by consensus. Once consensus is achieved, however, the amendment enters into force for all Parties. Importantly, the requirement for consensus means that a change in the criteria annexes, which contain no direct obligations or Parties but could affect the ultimate scope of the Convention, could not be achieved over the objection of the United States, if it became a Party. Paragraph 6 provides that, if an additional annex or amendment to an annex is related to an amendment to the Convention, it only enters into force when the corresponding amendment to the Convention enters into force. An amendment to an annex that is linked to an amendment to the Convention would therefore not enter into force until the procedures under Article 21 had been completed. ARTICLES 23-30 (FINAL CLAUSES) Articles 23 through 30 are final clauses that are routinely included in conventions negotiated under the auspices of the United Nations. Article 23 provides that each party shall have one vote, permits regional economic integration organizations (``REIOs'') to exercise the number of votes equal to the number of their member states that are Parties to the Convention, and precludes a REIO from exercising its right to vote if any of its members states exercises their right to vote. Article 24 provides that the Convention is open for signature by all States until May 22, 2002. As noted above, Article 25 provides that any Party may declare when it submits its instrument of ratification, acceptance, approval or accession that any amendments to Annexes A, B or C shall only enter into force for it upon an affirmative indication of its consent to be bound. Article 25 also provides that REIOs and their member states are not entitled to exercise rights under the Convention concurrently, and that in becoming Party to the Convention, a REIO must declare the extent of its competence in respect of matters governed by the Convention. Article 26 provides that the Convention shall enter into force on the ninetieth day after the deposit of the fiftieth instrument of ratification, acceptance, approval or accession. Instruments deposited by a REIO are not counted for purposes of bringing the Convention into force. Article 27 states that no reservations may be made to the Convention. The United States did not endorse this provision in the negotiations, but was the only delegation to express concerns about this language. ANNEX A--ELIMINATION Part I of Annex A lists the chemicals that Parties are required to control under Article 3(1). As discussed above under Article 4, the Annex also sets out certain ``specific exemptions,''which detail the type of production and use that a country may continue if it has registered for such exemption in accordance with Article 4. Part I also contains four ``notes,'' three of which serve, in effect, as exemptions to certain obligations in the Convention. Note (i) states that quantities of a chemical occurring as unintentional or trace contaminants in products and articles are not considered to be listed in the Annex. This clarification will help ensure that the convention is reasonably capable of being implemented. Note (ii) allows continued use, including export and import, of quantities of POPs chemicals that are constituents of articles manufactured or already in use before the entry into force of the relevant obligation so long as a Party notifies the Secretariat that a particular type of article remains in use within that Party. The note requires the Secretariat to make such notification available to the public. The United States expects to make use of this exemption with respect to a number of articles, such as treated wood. Note (iii) allows a Party, upon notification to the Secretariat, to continue to produce and use specified Annex A or B chemicals (for example, hexachlorobenzene or ``HCB'') as closed-system, site-limited intermediates. (Intermediates are chemicals that are used in the production of other chemicals.) HCB is currently used in the United States as an intermediate. The United States may, therefore, choose to rely on Note (iii) of Annex A to notify the Secretariat that it will produce and use HCB as an intermediate in accordance with the provisions of that Note. Such notification would not be required until the Convention enters into force for the United States. The exemption is renewable upon notification every 10 years, although the COP may decide not to renew it. Note (iv) makes it clear that the specific exemptions listed in Part A may only be exercised by countries that have registered for such exemptions in accordance with Article 4, with one exception: the specific exemption for use of polychlorinated biphenyls (PCBs) in articles in use under Part II (discussed below) may be exercised by all Parties, without the need for a registration under Article 4. Part II of Annex A contains obligations related to the use of PCBs in equipment. Paragraph (a) sets out certain obligations with respect to the identification, labeling and removal from use equipment containing specified levels of PCBs. It also references a target date of 2025, subject to review by the COP, for the phase-out of such equipment that should guide Parties in implementing their obligations under this provision. The United States has already taken strict measures to regulate PCBs and can implement this provision under existing authorities. The remaining sections of Part II obligate each Party to promote certain measures designed to reduce the risk from PCBs in equipment; prohibit export of PCBs except for the purpose of environmentally sound waste management; prohibit recovery for purposes of reuse of certain PCB liquids above 0.005 percent; and ``make determined efforts'' to ensure that all liquid PCBs and PCB equipment is disposed of in accordance with Article 6 by 2028. Existing statutory authority allows the United States to implement each of these obligations, nearly all of which are currently addressed under existing PCB regulations. Only U.S. regulations that currently allow the export of PCB equipment will require revision to conform them to these obligations. ANNEX B--RESTRICTION Part I of Annex B will list those chemicals for which production and use are restricted under Article 3, paragraph 1(b). Currently, the only chemical on the list is DDT. Annex B restricts DDT production and use to disease vector control, in recognition of its special value in fighting the spread of malaria, which claims over one million lives worldwide each year. Annex B also allows Parties to take specific exemptions for DDT production and use as an intermediate in the production of dicofol, a pesticide. DDT is not currently registered for use in the United States for disease vector control, nor is it produced in the United States. As noted above, however, DDT could potentially be legally produced or imported for use as an industrial chemical under certaincircumstances. Legislation will be sought to close this potential gap. Annex B also contains four ``notes.'' These are nearly identical to the notes described under Annex A, with certain conforming changes. Those changes reflect the fact that Annex B, as a ``restriction annex'' contains two types of controls: (a) ``acceptable purposes,'' which list the production and use restrictions that are available to all Parties; and (b) specific exemptions, which allow additional exemptions for Parties that register for the specified purposes. Part II of Annex B prescribes the restricted terms under which a Party may produce and use DDT for disease vector control. It creates a separate register for Parties that produce and use DDT, specifies certain reporting obligations for such Parties, and includes provisions aimed at the development and use of alternatives to DDT. annex c--unintentional production Annex C lists the POPs chemicals that occur as unintentionally produced byproducts, which are subject to the control measures set out in Article 5. The listed byproduct POPs are: dioxins, furans, hexachlorobenzene, and PCB. Annex C also sets out the two types of source categories referred to in Article 5: source categories that have a potential for comparatively high formation and release of these chemicals, and other source categories from which they may be unintentionally released. Annex C also provides general guidance to Parties on best available techniques and best environmental practices for preventing or reducing releases of the listed POPs byproducts. As provided in Article 5, this general guidance will be elaborated in the future in guidelines to be adopted by the COP. ANNEXES D-F (INFORMATION REQUIREMENTS RELATING TO THE ADDITION OF NEW CHEMICALS) Annex D sets out information requirements and screening criteria that each proposal for listing a new POPs chemical must satisfy. The proposing Party must submit information to identify the chemical, information relevant to the screening criteria set out in subparagraphs (b) through (e), a statement of the reasons for concern and, to the extent possible, information relating to risk management of the chemical. Subparagraph (b) requires evidence of persistence. Subparagraph (c) requires evidence of bioaccumulation. Subparagraphs (d) and (e) require evidence of the chemical's potential for long-range transport and toxicity, respectively. The numerical criteria for persistence and bioaccumulation in the Convention are consistent with the criteria applied under existing law and policy in the United States. Annexes E and F provide the information requirements that the Persistent Organic Pollutant Review Committee considers in conducting the risk profile and risk management evaluation, respectively. Annexes D, E and F are consistent with the approach taken in existing U.S. pesticide and chemical regulations. Considerations for taking action under FIFRA and TSCA include risk, costs, benefits, and other societal factors. As a practical matter, therefore it is likely that any chemical that would be approved for listing under this international procedures would also be the subject of significant regulatory action within the United States. Domestic implementation of the POPs Convention As noted above, the United States could implement nearly all Convention obligations under existing authorities. There are exceptions, however, where limited additional legislative authority, through changes to FIFRA and TSCA, will be sought to ensure the United States' ability to implement provisions of the Convention. These changes primarily concern the obligations in Article 3, which concerns measures to eliminate production and use of listed chemicals, as well as to control their import and export. In addition, statutory authority to prohibit any recycling of POPs substances will also be sought, in order to ensure effective U.S. compliance with paragraph 1(d)(iii) of Article 6. Other targeted changes may also be sought to ensure our ability to participate effectively in negotiations regardingproposed amendments to add chemicals, and to ensure that the United States is able to ratify such amendments in a timely manner, if it so chooses. Conclusion To date, ninety-one states have signed the Convention; one state (Canada) has already ratified the Convention. Several states, including many members of the Organization for Economic Cooperation and Development, are expected to deposit instruments of ratification, acceptance or approval over the next year. Early U.S. ratification would provide valuable momentum to bring the Convention into force and would demonstrate the continued commitment of the United States to cooperation with the international community on chemicals management issues, including at the World Summit on Sustainable Development in Johannesburg in September 2002. It would also demonstrate continued U.S. leadership on safe management of hazardous chemicals, pesticides, and their wastes. Finally, it would ensure that the United States is a Party when the Convention enters into force, when many of the critical decisions relating to its implementation will be made. For example, only Parties will be able to designate experts to sit on the Persistent Organic Pollutant Review Committee, which will play a key role in considering the addition of new substances to the Convention annexes. I recommend that the Stockholm Convention on Persistent Organic Pollutants, with Annexes, be transmitted to the Senate for its advice and consent as soon as possible, subject to the understandings previously described. Respectfully submitted, Colin L. Powell.