[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

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 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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