    [Senate Treaty Document 110-13]
    [From the U.S. Government Publishing 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.