    [Senate Treaty Document 108-7]
    [From the U.S. Government Publishing 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.

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