International Convention on Control of Harmful Anti-Fouling Systems on Ships, 2001Senate Consideration of Treaty Document 110-13
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[Senate Treaty Document 110-13] [From the U.S. Government Printing Office] 110th Congress 2d Session SENATE Treaty Doc. 110-13 _______________________________________________________________________ INTERNATIONAL CONVENTION ON CONTROL OF HARMFUL ANTI-FOULING SYSTEMS ON SHIPS, 2001 __________ MESSAGE from THE PRESIDENT OF THE UNITED STATES transmitting INTERNATIONAL CONVENTION ON THE CONTROL OF HARMFUL ANTI-FOULING SYSTEMS ON SHIPS, 2001 (THE ``CONVENTION'') January 22, 2008.--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 LETTER OF TRANSMITTAL ---------- The White House, January 22, 2008. To the Senate of the United States: I transmit herewith, for the advice and consent of the Senate to its ratification, the International Convention on the Control of Harmful Anti-Fouling Systems on Ships, 2001 (the ``Convention''). The Convention aims to control the harmful effects of anti- fouling systems, which are used on the hulls of ships to prevent the growth of marine organisms. These systems are necessary to increase fuel efficiency and minimize the transport of hull-borne species; however, anti-fouling systems can also have negative effects on the marine environment, including when a vessel remains in place for a period of time (such as in port). To mitigate these effects, the Convention prohibits Parties from using organotin-based anti-fouling systems on their ships, and it prohibits ships that use such systems from entering Parties' ports, shipyards, or offshore terminals. The Convention authorizes controls on use of other anti-fouling systems that could be added in the future, after a comprehensive review process. The Convention was adopted at a Diplomatic Conference of the International Maritime Organization in October 2001 and signed by the United States on December 12, 2002. The United States played a leadership role in the negotiation and development of the Convention. 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. Therefore, the Convention will enter into force on September 17, 2008. Organotin-based anti-fouling systems are specifically regulated through the Organotin Anti-Fouling Paint Control Act of 1988 (OAPCA), 33 U.S.C. 2401-2410. New legislation is required to fully implement the Convention and will take the form of a complete revision and replacement of OAPCA. All interested executive branch agencies support ratification. I recommend that the Senate give early and favorable consideration to the Convention and give its advice and consent to its ratification, with the declaration set out in the analysis of Article 16 in the attached article-by-article analysis. George W. Bush. LETTER OF SUBMITTAL ---------- Department of State, Washington, October 26, 2007. The President, The White House. The President: I have the honor to submit to you, with the recommendation that you transmit it to the Senate for its advice and consent to ratification, the International Convention on the Control of Harmful Anti-Fouling Systems on Ships, 2001. The Convention was adopted at a Diplomatic Conference of the International Maritime Organization on October 5, 2001, and will enter into force on September 17, 2008. All interested U.S. government agencies recommend that you transmit the Convention to the Senate for its advice and consent to ratification. Anti-fouling systems help to increase vessel fuel efficiency by preventing the growth of marine life on ship hulls. The Convention aims to curb the harmful effects of these systems on the marine environment through the leaching of biocides into the water. The Convention prohibits Parties to the Convention from using organotin-based anti-fouling systems on their ships and from allowing ships that use such systems to enter their ports, shipyards, or offshore terminals. Organotin-based anti-fouling systems are specifically regulated in the United States under the Organotin Anti-Fouling Paint Control Act of 1988 (OAPC). The Environmental Protection Agency is preparing new legislation to fully implement the Convention, which would replace OAPCA. The United States would not deposit its instrument of ratification until the requisite legislation is in place. I recommend that you transmit the International Convention on the Control of Harmful Anti-Fouling Systems on Ships, 2001, to the Senate for its advice and consent at the earliest opportunity. Respectfully submitted. Condoleezza Rice. Enclosure: As stated. Anti-Fouling Systems, International Convention on the Control of Harmful Anti-Fouling Systems on Ships, 2001 (the ``Convention'') ARTICLE-BY-ARTICLE ANALYSIS Article I--General obligations Parties undertake several general obligations in Article 1, such as to reduce or eliminate adverse effects on the marine environment and human health caused by anti-fouling systems; to endeavor to cooperate for the purpose of effective implementation of the Convention; and to encourage the continued development of anti-fouling systems that are effective and environmentally safe. Article 1 also clarifies that no provision is to be interpreted as preventing a State from taking, individually or jointly, more stringent measures than those identified in the Convention, provided those measures are consistent with international law. Article 2--Definitions Article 2 defines ten terms, which are self-explanatory. Notably, ``anti-fouling system'' is defined as a coating, paint, surface treatment, surface, or device that is used on a ship to control or prevent attachment of unwanted organisms. Article 3--Application Article 3 provides that the Convention applies to: (1) ships entitled to fly the flag of a Party; (2) ships not entitled to fly the flag of a Party but that operate under the authority of a Party; and (3) ships that enter a port, shipyard, or offshore terminal of a Party but do not fall under (1) or (2) above. The Convention contains standard language on the treatment of vessels entitled to sovereign immunity. Article 3 exempts warships, naval auxiliaries, and other ships owned or operated by a Party and used in governmental non-commercial service from the application of the provisions of the Convention. However, each Party is to ensure, by the adoption of appropriate measures, that such ships act in a manner consistent, so far as is reasonable and practicable, with the Convention. Article 3 also contains a non-Party provision, standard to International Maritime Organization (IMO) agreements, which states that Parties are to apply the requirements of the Convention as may be necessary to ensure that no more favorable treatment is given to non-Party ships. Read in conjunction with the international law savings clause in Article 15, it requires Parties to apply the Convention's provisions to non-Party ships to the extent consistent with international law, which would include, for example, as a condition of port entry. The proposed implementing legislation authorizes the U.S. Coast Guard and Environmental Protection Agency (EPA) to implement this provision. Article 4--Controls on anti-fouling systems Article 4, in conjunction with Annex 1, contains the core obligations of the Convention. It states that each Party is to prohibit and/or restrict the application, re-application, installation, or use of harmful anti-fouling systems on its ships as well as on ships that enter its ports, shipyards, or offshore terminals. It also provides that ships bearing an anti-fouling system that is subsequently controlled by the Convention through an amendment to Annex 1 may retain that system until the next scheduled renewal of that system or for a period of 60 months, whichever period is shorter. As noted below, Annex 1 prohibits the application or reapplication of anti-fouling systems containing organotin compounds acting as biocides after January 1, 2003, with an outright prohibition of their presence on ships' hulls after January 1, 2008, unless the compounds have been sealed so that no leaching occurs. Organotin-based anti-fouling systems are currently regulated pursuant to the Organotin Anti-Fouling Paint Control Act of 1988 (OAPCA), 33 U.S.C. Sections 2401-2410. OAPCA prohibits use of organotin anti-fouling paints on vessels under 25 meters in length (excluding aluminum hulls, outboard motors, and external drive units) and restricts the leaching rate of organotin anti-fouling paints used on larger vessels. EPA has used authority under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. Sections 136-136y, to impose additional requirements, such as certification and training requirements for applicators. The proposed legislation, among other things, would expand the existing prohibitions in OAPCA to include all ships covered by the Convention. Article 5--Controls of annex 1 waste materials Article 5 provides that a Party is to take appropriate measures to require that wastes from application or removal of an Annex 1 anti-fouling system are collected, handled, treated, and disposed of in a safe and environmentally sound manner to protect human health and the environment. Article 5 will be implemented through existing provisions of the Solid Waste Disposal Act, as amended, 42 U.S.C. Section 6901 et seq., and the Clean Water Act (CWA), 33 U.S.C. Section 1251 et seq. Articles 6 and 7--Process for proposing amendments to controls on anti- fouling systems; technical groups The Convention is intended to be a dynamic instrument under which controls on additional anti-fouling systems may be added over time. As described in Article 6, any Party may propose an amendment to Annex 1 in accordance with the information required in Annex 2. Such a proposal is made available by the IMO to all Parties, members of the IMO, and others. The Convention uses the venue of the IMO'S Marine Environment Protection Committee (``Committee'') to review the proposal, decide whether further review is warranted based on information required in Annex 3 for a comprehensive proposal, establish a technical group, and ultimately decide whether to approve a proposal to add an anti-fouling system to the Convention. Article 6 provides that the Committee (i.e., the Convention Parties represented on the Committee) is to establish a technical group and its terms of reference. The technical group is to review the comprehensive proposal and make a recommendation to the Committee regarding whether the anti- fouling system in question should be added to the Convention. Any Party may participate in a technical group. The technical group is to endeavor to achieve unanimity in its recommendations to the Committee, but if unanimity is not possible, minority views are also to be communicated. The Committee decides whether to approve any proposal to add an anti-fouling system to Annex 1, taking into account the technical group's report. Such a proposal is then treated like any Party's proposal under Article 16(2)(a) to amend the Convention, as described below. Article 8--Scientific and technical research and monitoring Article 8 provides that Parties are to take appropriate measures to promote and facilitate scientific and technical research on the effects of anti-fouling systems, as well as monitoring of such effects. It also requires Parties to promote the availability of certain relevant information to other Parties, upon request. The proposed legislation would implement these research requirements. In addition, OAPCA currently requires research activities concerning ecological effects of organotin compounds, as well as chemical and non-chemical alternatives to anti-foulant paints containing organotin. Although this statutory requirement has been satisfied, the Navy continues to research alternative anti-fouling systems that do not contain organotin to identify those that meet Navy requirements. NOAA conducts monitoring of TBT concentrations as part of its Mussel Watch program. EPA generally requires research on ecological effects as a condition of pesticide registration under FIFRA for biocidal anti-fouling systems, and EPA's findings on the risks and benefits of such a registration are made public. Article 9--Communication and exchange of information Article 9 lists the information each Party undertakes to communicate to the IMO. This includes a list of the nominated surveyors or recognized organizations that are authorized to act on behalf of that Party in the administration of the control of anti-fouling systems and information regarding any anti-fouling systems approved, restricted, or prohibited under domestic law. The IMO is to make available the information provided by Parties. Article 9 further requires Parties, upon request, to provide or have the manufacturers provide relevant information to other Parties on domestically approved anti- fouling systems, except for information protected by law. The proposed legislation would implement this requirement. Article 10--Survey and certification To assist in the implementation of the Convention, Article 10 and Annex 4 require a Party to ensure that certain ships entitled to fly its flag or operate under its authority are surveyed and certified. The survey must be such as to ensure that the ship's anti-fouling system fully complies with the Convention, after which the ship will receive an International Anti-Fouling System Certificate. The survey and certification requirements are similar to those found in other IMO agreements andare compatible with other ship certification procedures currently in place with the Coast Guard. The most stringent survey and certification requirements apply to ships of 400 gross tons and above that are engaged in international voyages, except fixed or floating platforms and certain units. Ships of less than 400 gross tons but 24 meters or more in length that are engaged in international voyages (except fixed or floating platforms and certain units) are subject to a less stringent declaration process, pursuant to Annex 4, regulation 5. Ships of less than 400 gross tons and shorter than 24 meters in length are not subject to survey and certification requirements, although the Convention still applies in other respects. The proposed legislation would implement these requirements. Article 11--Inspection of ships and detection of violations 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 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, taking into account IMO guidelines. 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. A Party taking such steps is to notify the Administration of the ship concerned. The proposed legislation would implement the Article 11 requirements. Article 12--Violations This article requires Parties to prohibit any violations of the Convention and to establish sanctions under domestic law adequate in severity to discourage such violations. Whenever a violation occurs within the jurisdiction of a Party, the Party is either to: (1) cause proceedings to take place in accordance with its law; or (2) furnish to the Administration of the ship concerned information and evidence that a violation has occurred. Once an Administration is informed of a violation, it is required to investigate the matter and, if it is satisfied that there is sufficient evidence, cause proceedings to take place as soon as possible, in accordance with its own laws. The Administration is required to promptly inform the reporting Party and the IMO of any action taken, and if it has not taken any action within one year, it is to so inform the reporting Party. The proposed legislation would implement these requirements. Article 13--Undue delay or detention of ships Article 13 provides that all possible efforts are to be made to avoid a ship being unduly detained or delayed under Articles 11 and 12. If a ship is unduly detained or delayed, it is to be entitled to compensation for any loss or damage suffered. The Coast Guard has adequate existing authority to compensate any meritorious claims raised pursuant to this article. Article 14--Dispute settlement Article 14 requires Parties to settle any dispute between them concerning the interpretation or application of the Convention by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies, or other peaceful means of their choice. Article 15--Relationship to international law of the sea Article 15 provides that the Convention shall not prejudice the rights and obligations of any State under customary international law, as reflected in the United Nations Convention on the Law of the Sea. Article 16--Amendments Article 16 lays out the procedures for amending the Convention and its Annexes. All amendments are adopted by a two-thirds majority of the Parties present and voting. Amendments to the body of the Convention must be individually ratified or acceded to by each Party. The Executive Branch would submit to the Senate for advice and consent any amendments to the body of the Convention. For amendments to an Annex other than Annex 1, Parties have a twelve-month period (unless the Marine Environment Protection Committee decides on a different time period) after it is adopted in which to object to the amendment, in which case the amendment will not bind the objecting Party. This procedure was modeled after one found in the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 (MARPOL). Amendments to Annex 1 are handled in the same manner as amendments to other Annexes, except that, in addition to having twelve months to object, Parties are given the further options of either: (1) notifying the Secretary-General, prior to entry into force of a particular amendment, that such 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 I shall enter into force for it only after the notification to the Secretary-General of its acceptance of such amendment. It is recommended that the United States exercise the second option and include the following declaration in its instrument of ratification: The Government of 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. In the event that an annex amendment was adopted that was of such a nature that it needed to be sent to the Senate for advice and consent in order for the United States constitutionally to be bound by it, the Executive Branch would take the necessary steps to ensure that the amendment did not enter into force for the United States absent such advice and consent. Articles 17-21--Signature, ratification, acceptance, approval or accession, entry, into force, denunciation, depositary and languages These articles contain standard final clauses. The Convention will enter into force 12 months after the date on which not less than 25 States have consented to be bound, the combined merchant fleets of which constitute not less than 25 percent of the gross tonnage of the world's merchant shipping. As of September 17, 2007, 25 States (Antigua and Barbuda, Australia, Bulgaria, Cook Islands, Croatia, Cyprus, Denmark, France, Greece, Japan, Kiribati, Latvia, Lithuania, Luxembourg, Mexico, Nigeria, Norway, Panama, Poland, Romania, Saint Kitts and Nevis, Slovenia, Spain, Sweden, and Tuvalu) have ratified the Convention, constituting over 25 percent of the world's shipping tonnage. Annex 1--Controls on anti-fouling systems As referenced in Article 4, Annex 1 describes in matrix form the Convention's controls on anti-fouling systems. It bans the application or reapplication of organotin compounds acting as biocides in anti-fouling systems on covered ships, effective January 1, 2003. It also provides that, by January 1, 2008, ships (with certain exceptions): (1) shall not bear organotin compounds acting as biocides on their hulls or external parts or surfaces; or (2) shall bear a coating that forms a barrier to such compounds leaching from the underlying non-compliant anti-fouling systems. Annex 2--Required elements for an initial proposal Annex 2 lists the basic information a Party is to include in an initial proposal to amend Annex 1, such as: identification of the anti-fouling system addressed in the proposal; characterization of the information that suggests the anti-fouling system may pose a human health risk or cause adverse effects in non-target organisms; material regarding the toxic components; an analysis of the association between the anti-fouling system, the related adverse effects, and the environmental concentrations; and a preliminary recommendation on what type of restriction would be effective. Annex 3--Required elements of a comprehensive proposal Annex 3 lists the elements needed for a comprehensive proposal to amend Annex 1. This list includes, e.g., an evaluation of the association between the anti-fouling system in question, the related adverse effects and the environmental concentrations, as well as a summary of the results of any available studies on the potential effects of the recommended control measures relating to air quality, shipyard conditions, international shipping, and other relevant sectors, and the availability of suitable alternatives. Annex 3 was specifically formulated to closely parallel the processes used by the United States domestically to review pesticide registrations. Annex 4--Surveys and certification requirements for anti-fouling systems Regulation 1 of Annex 4 sets out the survey and certification requirements for ships entitled to fly the flag of a Party. It specifically delineates the survey rules for such ships (except certain floating platforms and units) greater than 400 gross tons that are engaged on international voyages. For other ships, it requires the Administration to establish appropriate measures to ensure that the Convention is complied with. Regulation 2 of Annex 4 provides that, following successful completion of a survey, the Administration is to require that the ship be issued an International Anti-fouling System Certificate. This Certificate is to be accepted by other Parties and regarded for all purposes covered by the Convention as having the same validity as a Certificate issued by them. Regulation 3 of Annex 4 allows another Party, at the request of the Administration of a ship, to issue or authorize the issue of a Certificate to that ship. Regulation 4 of Annex 4 describes the situations in which a Certificate ceases to be valid, namely: (1) if the anti-fouling system is changed or replaced and the Certificate is not endorsed in accordance with this Convention; or (2) upon transfer of the ship to the flag of another State. Regulation 5 of Annex 4 provides that the Administration is to require specified categories of ships to carry a declaration signed by the owner or owner's authorized agent. Appendix 1 to Annex 4 provides a model form of an International Anti-Fouling System Certificate as well as a model form of record of anti-fouling systems. Appendix 2 to Annex 4 provides a model form of declaration on anti-fouling systems.