International Convention on Control of Harmful Anti-Fouling Systems on Ships, 2001Senate Consideration of Treaty Document 110-13
Treaty Document
Show OverviewText - Treaty Document: Senate Consideration of Treaty Document 110-13All Information (Except Treaty Text)
A Senate treaty document provides the text of the treaty as transmitted to the Senate, as well as the transmittal letter from the President, the submittal letter from the Secretary of State, and accompanying papers.
Text of Treaty Document available as:
- TXT
For complete and accurate display of this text, see the PDF.
[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.