[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.


