Protocol of 1997 Amending MARPOL ConventionSenate Consideration of Treaty Document 108-7
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[Senate Treaty Document 108-7] [From the U.S. Government Printing Office] 108th Congress 1st Session SENATE Treaty Doc. 108-7 _______________________________________________________________________ PROTOCOL OF 1997 AMENDING MARPOL CONVENTION __________ MESSAGE from THE PRESIDENT OF THE UNITED STATES transmitting PROTOCOL OF 1997 TO AMEND THE INTERNATIONAL CONVENTION FOR THE PREVENTION OF POLLUTION FROM SHIPS, 1973, AS MODIFIED BY THE PROTOCOL OF 1978 THERETO (HEREINAFTER THE ``PROTOCOL OF 1997''). THE PROTOCOL OF 1997, WHICH WOULD ADD ANNEX VI, REGULATIONS FOR THE PREVENTION OF AIR POLLUTION FROM SHIPS, TO THE INTERNATIONAL CONVENTION FOR THE PREVENTION OF POLLUTION FROM SHIPS, 1973, AS MODIFIED BY THE PROTOCOL OF 1978 (HEREINAFTER THE ``MARPOL CONVENTION''), WAS SIGNED BY THE UNITED STATES ON DECEMBER 22, 1998 [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] May 15, 2003.--The Treaty 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 WASHINGTON : 2003 LETTER OF TRANSMITTAL ---------- The White House, May 15, 2003. To the Senate of the United States: I transmit herewith, for the advice and consent of the Senate to its ratification, the Protocol of 1997 to Amend the International Convention for the Prevention of Pollution from Ships, 1973, as Modified by the Protocol of 1978 thereto (hereinafter the ``Protocol of 1997''). The Protocol of 1997, which would add Annex VI, Regulations for the Prevention of Air Pollution from Ships, to the International Convention for the Prevention of Pollution from Ships, 1973, as Modified by the Protocol of 1978 (hereinafter the ``MARPOL Convention''), was signed by the United States on December 22, 1998. I also enclose, for the information of the Senate, the report of the Department of State and its attached analysis of the Protocol of 1997, as well as Resolution 2 of the 1997 MARPOL Conference with its annexed Technical Code on Control of Emission of Nitrogen Oxides from Marine Diesel Engines. The MARPOL Convention is the global agreement to control pollution from ships. MARPOL Annex VI regulates the emission into the atmosphere of specified pollutants from ships. It complements the other annexes to the MARPOL Convention, which relate to the transport of oil (Annex I), harmful substances carried in bulk (Annex II) harmful substances in packaged form (Annex III), ship-generated sewage (Annex IV) and garbage (Annex V). The United States is a party to all of these annexes with the exception of Annex IV. MARPOL Annex VI regulates the prevention of air pollution from ships by limiting the discharge of nitrogen oxides from larger marine diesel engines, governing the sulfur content of marine diesel fuel, prohibiting the emission of ozone-depleting substances, regulating the emission of volatile organic compounds during the transfer of cargoes between tankers and terminals, setting standards for shipboard incinerators and fuel oil quality, and establishing requirements for platforms and drilling rigs at sea. MARPOL Annex VI is an important step toward controlling and preventing emissions of harmful air pollutants from ships. U.S. ratification of the Protocol of 1997 will demonstrate U.S. commitment to an international solution and should hasten the entry into force of the Protocol of 1997. Ratification will also enhance our ability to work within the treaty framework to obtain subsequent amendments that will require further reductions in emissions of nitrogen oxides that are now achievable through the use of modern control technologies which the United States strongly supports. I recommend that the Senate give early and favorable consideration to the Protocol of 1997 and give its advice and consent to ratification, subject to the declarations and understanding set out in the accompanying report of the Secretary of State. George W. Bush. LETTER OF SUBMITTAL ---------- The Secretary of State, Washington, DC. The President, The White House. The President: I have the honor to submit to you with a view to its transmittal to the Senate for advice and consent to ratification, the Protocol of 1997 to Amend the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 thereto (hereinafter the ``Protocol of 1997''). The Protocol of 1997, which would adds Annex VI, Regulations for the Prevention of Air Pollution from Ships, to the International Convention for the Prevention of Pollution from ships, 1973, as Modified by the Protocol of 1978 thereto (hereinafter the ``MARPOL Convention''), was signed by the United States on December 22, 1998. I also enclose, for the information of the Senate, Resolution 2 of the 1997 MARPOL Conference with the annexed Technical Code on Control of Emission of Nitrogen Oxides from Marine Diesel Engines, and a detailed analysis of Annex VI prepared by the Department. The MARPOL Convention is the global agreement to control accidental and operational discharges of pollution from ships. It currently includes a framework agreement setting forth general obligations, and five annexes that relate to particular sources of marine pollution from ships. Two of these annexes are mandatory for all MARPOL Convention Parties--Annexes I and II, that relate, respectively, to the transport of oil and the transport of harmful substances carried in bulk. The other three annexes are optional--Annex III, which relates to the transport of harmful substances in packaged form, and Annexes IV and V, which regulate ship-generated sewage and garbage respectively. The Convention and the Protocols of 1978 and 1997 are to be interpreted as one single instrument between Parties to the same Protocol. On August 12, 1980, the United States ratified the Protocol of 1978 (which incorporates with modifications the 1973 Convention), along with Annexes I and II. The MARPOL Convention and Annexes I and II entered into force for the United States on October 2, 1983. On December 30, 1987, the United States ratified Annex V, which entered into force on December 31, 1988. On December 3, 1991, the United States ratified Annex III, which entered into force on July 1, 1992. While Annex IV, concerning ship-generated sewage, is expected to enter into force internationally on September 27, 2003, the Administration is not requesting Senate advice and consent to ratification of that Annex. Substantive provisions of Annex VI Annex VI seeks to reduce air pollution from ships at sea and in port. It does so by limiting the emission of nitrogen oxides (NOx) from marine diesel engines above 130 kW (175 hp); governing the sulfur content of marine diesel fuel; prohibiting the deliberate emission of ozone-depleting substances; regulating the emission of volatile organic compounds during transfer of cargoes between tankers and terminals; and setting international standards for shipboard incinerators and fuel oil quality. Annex VI also establishes similar requirements for platforms and drilling rigs at sea, with some exceptions. The NOx Technical Code attached to Resolution 2 of the 1997 MARPOL Conference contains testing and certification procedures for the engine NOx limits. The substantive provisions of Annex VI are discussed in this and subsequent sections of this report and the attached analysis of the regulations. Regulation 13 of Annex VI would limit NOx emissions from large marine diesel engines to levels that the negotiating States in 1997 agreed as being achievable by the year 2000. These limits, which require the use of readily available emission control technology, apply to any such engine installed on a ship constructed on or after January 1, 2000, and to any such engine that undergoes a major conversion after that date. The limits do not otherwise apply to engines on ships. Regulation 14 of the Annex controls emissions of sulfur oxides (SOx) by imposing a global cap of 4.5% m/m (4.5% sulfur mass to total mass or 45,000 parts per million) on the sulfur content of fuel oil used on ships for combustion and calls on the International Maritime Organization (IMO) to monitor the worldwide average sulfur content of residual fuel oil once the Protocol of 1997 comes into force. Annex VI contains provisions for the establishment of special ``SOx Emission Control Areas''. The sulfur content of fuel used by ships operating in these areas must not exceed 1.5% m/m (15,000 ppm). Alternatively, a ship can use an exhaust gas cleaning system or another technological method to limit sulfur oxide (SOx) emissions. The Annex designates the Baltic Sea as a SOx Emission Control Area and provides a mechanism by which the IMO may designate other SECAs. In March 2000, the North Sea was designated as such an area. The United States may seek the establishment of SOx Emission Control Areas in certain areas pursuant to the procedures set out in Appendix III to Annex VI. However, proposals for the designation of SOx Emission Control Areas by the IMO may be made only by States that have consented to be bound by the Protocol of 1997. The general requirements for the sulfur content of fuel will go into effect when the Protocol of 1997 enters into force. Ships entering a SECA are exempt from the SECA's more stringent requirements for the first twelve months immediately following the bringing into force of the SECA. Regulation 12 of Annex VI prohibits deliberate emissions of ozone-depleting substances that are controlled under the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer (a treaty to which the United States is party). These substances include halon compounds and five chlorofluorocarbon compounds (CFCs). New installations containing ozone-depleting substances, such as those found in certain fire extinguishers, are prohibited on all ships. However, new installations containing hydro-chlorofluorocarbons (HCFCs) are permitted until January 1, 2020. Regulation 16 of Annex VI establishes requirements for the incineration of materials on board ship. These include prohibitions on the incineration on board ship of certain products, such as contaminated packaging materials and polychlorinated biphenyls (PCBs). Application of Annex VI As with all other MARPOL Convention Regulations in force for them, States bound by Annex VI will be required to apply Annex VI Regulations to all ships, including those of non-party States, using their ports or the offshore terminals under their jurisdiction as may be necessary to ensure that no more favorable treatment is given to the ships of non-Parties to the Annex. As compared to mandatory Annexes I and II on pollution by oil and noxious liquid substances in bulk, which have been construed to apply only to seagoing vessels, Annex VI will apply to all ships operating in the marine environment except where expressly provided elsewhere in the Regulations contained in Annex VI. Article 3 of the MARPOL Convention of 1973 exempts warships, naval auxiliary and other ships owned or operated by a State and used in governmental non-commercial service, from the application of the provisions of the annexes. The State Parties participating in the 1997 MARPOL Conference that produced the Protocol of 1997 therefore agreed that such ships will be exempt from the application of the provisions of Annex VI under Article 3(3) of the MARPOL Convention of 1973. However, each Party will still be required to take appropriate measures not impairing the operations or operational capabilities of such ships owned or operated by it, to ensure that such ships act in a manner consistent, so far as is reasonable and practicable, with Annex VI. In the case of the U.S. Navy, most of its fossil fuel-powered ships now use gas turbines, which are not regulated by Annex VI, for main propulsion. U.S. Navy ships that do use diesel engines for main propulsion use low (1%) sulfur distillate fuel that is much cleaner than the heavy fuel oils used by many commercial marine diesel engines. In addition, new classes of U.S. Navy surface ships are no longer constructed to use CFCs in shipboard air conditioning and refrigeration equipment, nor halons in shipboard fire-fighting equipment. Domestic regulation of NOx emissions The Environmental Protection Agency has proposed to regulate NOx emissions from Category 3 marine diesel engines pursuant to section 213 of the Clean Air Act, 42 U.S.C. Sec. 7547. This announcement, which is contained in a Notice of Proposed Rule Making in the May 29, 2002, edition of the Federal Register at pages 37547-37608, proposed to apply the Annex VI standards to new diesel engines on U.S.-flag vessels starting in 2004 and sought comment on whether the Clean Air Act authorizes application of these standards to engines on foreign-flag ships that enter U.S. ports. EPA also sought comment on the feasibility, costs and benefits of additional control measures and on whether it should consider a sulfur content limit for marine diesel fuel in order to reduce particulate emissions from those engines. The comment period ended July 16, 2002. Possibility of more stringent standards As noted in the 1977 Secretary of State's Report to the President on the International Convention for the Prevention of Pollution from Ships, 1973, recommending its transmittal to the Senate for advice and consent to ratification, the United States and other States defeated attempts at the 1973 Conference to ``restrict national powers to apply domestic regulations more stringent than prevailing international standards to foreign vessels in ports.'' Such authority is also preserved under customary international law as reflected in the 1982 United Nations Convention on the Law of the Sea. Thus, the Protocol of 1997, does not, as a matter of international law, prohibit Parties from imposing more stringent measures as a condition of entry into their ports or internal waters, unless a particular regulation in Annex VI expressly imposes such a limitation. In this context, it should be noted that Regulation 15, Volatile Organic Compounds, obligates Parties to provide notice to the IMO of the ports and terminals under their jurisdiction to be subject to vapor emission control requirements and to include in such notification the information specified in paragraph 2 of that Regulation, including a requirement that notification occur six months before the effective date of the controls. Regulation 15 also requires such States to take into account the safety guidance developed by the IMO, that such systems are operated in a safe manner, and to avoid undue delay to ships. In light of these obligations, Parties may not specify requirements inconsistent with these obligations (e.g., imposing vapor emission controls on vessels or cargoes that take effect before the six month notification period, stipulating unsafe procedures, or causing undue delay to ships). Regulation 15 does not, however, establish actual emission standards. Recognizing this, Parties are free to prescribe standards applicable to VOC emissions consistent with the obligations noted above. It should also be noted that Regulation 15 applies only to VOC emission recovery associated with cargo transfer operations between tankers and port facilities. The Department of State believes it is important to memorialize clearly the scope of these requirements, and accordingly, I propose that the following declaration be included in the U.S. instrument of ratification of the Protocol of 1997: The Government of the United States of America understands that Regulation 15 applies only to safety aspects associated with the operation of vapor emission control systems that may be applied during cargo transfer operations between a tanker and port-side facilities and to the requirements specified in Regulation 15 for notification to the International Maritime Organization of port State Regulation of such systems. Apart from the legal issue of whether specific provisions in a treaty might limit port state authorities, the United States has basic and enduring national interests related to the oceans and U.S. port regions, and has consistently taken the position that the full range of these interest is best protected through a widely accepted international framework governing uses of the sea. A workable international regime for the prevention of air pollution from ships is in the best interests of all States because it will subject international shipping to a uniform standard that is environmentally protective. While retaining the right to impose more stringent requirements on ships entering U.S. ports, the United States will work to strengthen international standards by promoting development of more stringent emission limits that reflect the capabilities of available technology. The NOx emission control limits contained in Regulation 13 of Annex VI are those that were agreed in 1997 as being achievable by January 1, 2000, on new marine diesel engines. Consistent with the dates contained in the Regulation 13 NOx requirements, EPA has advised the Department of State that engine manufacturers worldwide are currently producing and selling marine diesel engines that meet these standards. EPA also advises that engine manufacturers are now applying a variety of basic emission-control technologies to meet these limits, including in-cylinder technologies such as optimized turbocharging, increased compression ratio, and optimized fuel injection, which generally includes timing retard and changes to the number and size of injector holes to increase injection pressure. Regulation 13(d)(b) of Annex VI itself contemplates that new technology will become available to reduce onboard NOx emissions below those limits. EPA has noted that such technology is now available on the land-based counterparts of these engines, in the form of innovations such as improved fuel systems and in-cylinder controls. Other advanced technologies have the potential to achieve much greater reductions, including engine cooling, water emulsification and injection after-treatment including selective catalyst reduction, and fuel cells. EPA further advises that engine manufacturers are developing and apply all of these technologies in demonstration projects on marine vessels. In view of these developments, the Department of State favors revision of the emission standards set forth in Regulation 13 to achieve the greatest degree of emission reduction achievable through the application of the new technology, taking into account the availability of such technology and its cost. The Department of State views it as essential that the IMO agree on such reductions in NOx emissions on an urgent basis and amend these technical provisions of Annex VI accordingly. Resolution 1 of the 1997 MARPOL Conference invited the Marine Environment Protection Committee (MEPC) of the IMO, if the conditions for entry into force of the Protocol of 1997 had not been meet by December 31, 2002, to initiate at its first meeting thereafter as a matter of urgency a review to identify the impediments to entry into force of the Protocol and any necessary measures to alleviate those impediments. At the request of the IMO Assembly, the MEPC has agreed to initiate that review at its first meeting in 2003, now tentatively scheduled for July 14-18, 2003. The United States intends to press the IMO to set more stringent NOx emission standards on an expedited basis and encourages other States to ratify the Protocol so it may enter into force promptly; amendments to Annex VI could then be adopted and enter into force through the long-established simplified amendment procedure specified in Article 16(2) of the MARPOL Convention of 1973. At the same time, consistent with its rights and obligations under the Protocol of 1997, the United States government retains the prerogative to consider imposing more stringent standards as a condition of port entry, especially in the event it is not possible to develop credible and effective NOx emission standards through the IMO. The United States is also considering whether the Annex VI sulfur oxide limits should be lowered under this Convention, particularly in SOx Emission Control Areas. With the foregoing considerations in mind, I propose that the following declaration be included in the U.S. instrument of ratification of the Protocol of 1997: The Government of the United States of America notes that at the time of adoption of the Protocol of 1997, the NOx emission control limits contained in Regulation 13 were those agreed as being achievable by January 1, 2000, on new marine diesel engines, and further notes that Regulation 13(3)(b) contemplated that new technology would become available to reduce on-board NOx emissions below those limits. As such improved technology is now available, the United States expresses its support for an amendment to Annex VI, that would, on an urgent basis, revise the agreed NOx emission control limits contained in Regulation 13 in keeping with new technological developments. Similarly, I propose that the following understanding be included in the U.S. instrument of ratification of the Protocol of 1997: The Government of the United States of America understands that, with respect to emissions of nitrogen oxides pursuant to Regulation 13 of Annex VI, the Protocol of 1997 does not, as a matter of international law, prohibit Parties from imposing more stringent measures than those identified in the Protocol as a condition of entry into their ports or internal waters. The simplified amendment procedure detailed in Article 16(2) of the MARPOL Convention of 1973 has been used with regard to all four MARPOL Convention Annexes after their entry into force. It was established to permit more effective and rapid adoption and entry into force of technical amendments to the MARPOL Convention. Pursuant to longstanding practice under the MARPOL Convention, U.S. acceptance of amendments to Annex VI will not require further advice and consent by the Senate. Entry into force and implementation Only States that are Parties to the MARPOL Convention may become Parties to the Protocol of 1997. The Protocol of 1997 will enter into force twelve months after the date on which not less than 15 States have consented to be bound, the combined merchant fleets of which constitute not less than fifty percent of the gross tonnage of the world's merchant shipping. As of October 31, 2002, six States (Bahamas, Liberia, Marshall Islands, Norway, Singapore and Sweden) have ratified Annex VI, constituting approximately 25 percent of the world's shipping tonnage. Recently, a sufficient number of other States (Belgium, Cyprus, Denmark, Finland, Germany, Greece, Luxembourg, the Netherlands, Panama and Spain) have publicly indicated their indication to ratify the Protocol of 1997 in the near future. Were this to happen, the conditions for entry into force of the Protocol of 1997 would be met by the time MEPC meets in the early summer of 2003. U.S. ratification by that time would significantly enhance our ability to work through the IMO to achieve our environmental objectives as they relate to international maritime commerce. The Protocol will enter into force for the States consenting to be bound after the Protocol of 1997 enters into force three months after the date of deposit of their instruments of ratification, accession or acceptance. The Protocol may be denounced at any time after five years from the date on which it entered into force for that Party, effective twelve months after receipt of the denunciation. Annex VI will implementing legislation that is being submitted separately. The Protocol of 1997, through Annex VI, will make an important contribution to the protection of the environment by addressing harmful air pollutants from ships. Ratification will also strengthen our ability to work through the IMO for international agreement on more stringent standards in the future. The Environmental Protection Agency, the U.S. Coast Guard, and the Departments of Defense, Justice, Interior and Transportation, join me in recommending ratification of the Protocol of 1997 with the declarations and understanding described herein. I understand it also enjoys the support of a substantial majority of the maritime industry. I recommend that Annex VI be transmitted to the Senate for its advice and consent to ratification at an early date. Respectfully submitted, Colin L. Powell. Enclosures: As stated. [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]