[Senate Executive Report 108-8]
[From the U.S. Government Publishing Office]



108th Congress                                               Exec. Rpt.
                                 SENATE
 1st Session                                                      108-8

======================================================================



 
 CONVENTION FOR INTERNATIONAL CARRIAGE BY AIR (TREATY DOC. 106-45) AND 
   PROTOCOL TO AMEND THE CONVENTION FOR UNIFICATION OF CERTAIN RULES 
     RELATING TO INTERNATIONAL CARRIAGE BY AIR (TREATY DOC. 107-14)
                                _______
                                

                 July 29, 2003.--Ordered to be printed

                                _______
                                

          Mr. Lugar, from the Committee on Foreign Relations,
                        submitted the following

                              R E P O R T

       [To accompany Treaty Doc. 106-45 and Treaty Doc. 107-14)]

    The Committee on Foreign Relations, to which was referred 
the Convention for the Unification of Certain Rules for 
International Carriage by Air (Treaty Doc. 106-45) and the 
Protocol to Amend the Convention for the Unification of Certain 
Rules Relating to International Carriage by Air Signed at 
Warsaw on October 12, 1929 (Treaty Doc. 107-14), having 
considered the same reports favorably thereon with a 
reservation, as indicated in the resolutions of advice and 
consent, and recommends that the Senate give its advice and 
consent to the ratification thereof as set forth in this report 
and the accompanying resolutions of advice and consent to 
ratification.

                                CONTENTS

                                                                   Page

  I. Purpose..........................................................1
 II. Background.......................................................2
III. Summary of Key Provisions of the Treaties........................3
 IV. Implementing Legislation.........................................6
  V. Committee Action.................................................6
 VI. Committee Recommendation and Comments............................6
VII. Resolutions of Ratification......................................7
VIII.Appendix--Hearing of June 17, 2003 entitled ``Treaties Related to 
     Aviation and the Environment.....................................9

                               I. Purpose

    These treaties establish rules governing liability arising 
from international air carriage. This includes liability 
arising from injuries and deaths to persons, as well as damage 
to, or loss of, baggage and cargo, that occur in connection 
with international air carriage.

                             II. Background

    The Convention for the Unification of Certain Rules for 
International Carriage by Air (Treaty Doc. 106-45) (hereinafter 
``the Montreal Convention''); and the Protocol to Amend the 
Convention for the Unification of Certain Rules Relating to 
International Carriage by Air Signed at Warsaw on October 12, 
1929 (Treaty Doc. 107-14) (hereinafter ``the Hague Protocol'') 
both address liability arising from international air carriage.

Montreal Convention

    The Montreal Convention establishes a comprehensive regime 
governing liability arising from international air carriage. It 
is intended to replace the current patchwork set of liability 
regimes in this area, which include the 1929 Warsaw Convention 
for the Unification of Certain Rules Relating to International 
Carriage by Air, various protocols to that Convention, and 
voluntary agreements among air carriers. The Warsaw system, as 
it is known, has long been considered antiquated in several 
respects. The new Montreal Convention represents the 
culmination of decades of efforts by the United States and 
other countries to establish a regime providing increased 
protection for international air travelers and shippers, and 
modern and efficient procedures reflecting developments in the 
aviation industry.

Hague Protocol

    The Hague Protocol amends the 1929 Warsaw Convention that 
the Montreal Convention is designed to replace. Until the 
Montreal Convention gains wide adherence, the Warsaw system 
will remain in place between many countries. Accordingly, the 
Committee recommends that the Senate advise and consent to the 
Hague Protocol so that U.S. passengers, shippers, and air 
carriers, in this interim period, may take advantage of some 
modern elements of the protocol, especially those relating to 
the carriage of cargo. At present, there is uncertainty about 
whether the United States is a party to the Hague Protocol. 
This uncertainty arises, in part, from the confusion that 
results from the patchwork nature of the Warsaw system. The 
1929 Warsaw Convention has been amended by a series of 
protocols. Some countries are parties only to the Warsaw 
Convention; others are parties only to particular protocols 
amending the Convention. Recent litigation in federal court has 
highlighted this confusion. In 2000, the U.S. Court of Appeals 
for the Second Circuit held in Chubb & Son, Inc. v. Asiana 
Airlines, 214 F.3d 301 (2d Cir. 2000), cert. denied, 533 U.S. 
928 (2001), that the United States and South Korea did not have 
treaty relations with respect to international air carriage 
rules because the two countries were not parties to common 
pieces of this regime.
    Ratification of the Hague Protocol will serve to clarify 
treaty relationships immediately with a number of countries 
with which the status of our treaty relationships under the 
Warsaw system may be unclear in light of the Chubb case. This 
includes countries with which we may have no treaty 
relationships at present. It also includes countries with which 
our only current treaty relationship may be the relatively 
antiquated 1929 Warsaw Convention, unamended by any of the 
subsequent protocols. With respect to this latter group of 
countries, ratification of the Hague Protocol is useful because 
the Protocol streamlines the Warsaw Convention's cumbersome 
documentation requirements for cargo transportation. In the 
short-term, having cargo shipments to and from such countries 
governed by the Hague Protocol rather than by the unamended 
Warsaw Convention will benefit shippers.
    The relevance of the Hague Protocol will wane as more 
countries become parties to the Montreal Convention, which 
provides updated rules governing air carriage. Where two 
countries are parties both to the Montreal Convention and to 
prior conventions governing international air carriage, the 
Montreal Convention, by its terms, supersedes the earlier 
instruments. The Committee hopes that United States 
ratification of the Montreal Convention will serve to encourage 
other countries also to become parties to it. The Committee 
encourages the Administration to undertake active diplomatic 
efforts to promote further ratifications.

             III. Summary of Key Provisions of the Treaties

    A detailed article-by-article discussion of these treaties 
may be found in the Letters of Submittal from the Secretary of 
State to the President, which are reprinted in full in the 
respective Senate Treaty Documents. A summary of the key 
provisions of the treaties is set forth below.

                          MONTREAL CONVENTION

Continuity of Applicable Warsaw Precedents

    The Montreal Convention, like the Warsaw Convention, will 
provide the basis for a private right of action in U.S. courts 
in matters covered by the Convention. No separate implementing 
legislation is necessary for this purpose.
    In the nearly seventy years that the Warsaw Convention has 
been in effect, a large body of judicial precedent has been 
established in the United States. The negotiators of the 
Montreal Convention intended to preserve these precedents. 
According to the Executive Branch testimony, ``[w]hile the 
Montreal Convention provides essential improvements upon the 
Warsaw Convention and its related protocols, efforts were made 
in the negotiations and drafting to retain existing language 
and substance of other provisions to preserve judicial 
precedent relating to other aspects of the Warsaw Convention, 
in order to avoid unnecessary litigation over issues already 
decided by the courts under the Warsaw Convention and its 
related protocols.'' (Response to questions for the record 
submitted by Chairman Lugar, page 68).

Elimination of Liability Limits and of Defenses to Certain Damages

    The Montreal Convention eliminates limits on air carrier 
liability for covered damages related to death or personal 
injury to passengers that applied under the Warsaw Convention. 
Article 21 of the Convention provides that for proven damages 
up to 100,000 Special Drawing Rights,\1\ air carriers may not 
exclude or limit their liability, subject to the comparative 
fault provision in Article 20. For such damages exceeding 
100,000 Special Drawing Rights, an air carrier shall not be 
liable if it proves that the damages were not due to the 
negligence, or other wrongful act or omission of the carriers, 
its servants or agents, or that such damage was solely due to 
the negligence or other wrongful act or omission of a third 
party. As with the similar provision in the Warsaw Convention 
(Article 20(1)), the burden is on the air carrier, not the 
injured party, to show that the air carrier was not negligent 
or that the damage was solely due to the acts of a third party. 
In sum, Article 21 permits injured parties or their heirs to 
recover all provable damages for death and personal injury 
allowed under applicable law and covered by the Convention. The 
Montreal Convention thus improves considerably on provisions in 
the Warsaw Convention that imposed limits on carrier liability 
for such damages. It also codifies an agreement made among 
major air carriers in 1996 (known as the IATA Intercarrier 
Agreement on Passenger Libaility) to waive the liability limits 
of the Warsaw system.
---------------------------------------------------------------------------
    \1\ ``Special Drawing Rights'' is an artificial ``basket'' currency 
developed by the International Monetary Fund for internal accounting 
purposes, and is used as the monetary unit of reference in the 
Convention. As of July 2003, one Special Drawing Right is equivalent to 
approximately $1.40.
---------------------------------------------------------------------------

Limits on Liability for Delay, Baggage, and Cargo Related Damages

    Article 22 of the Convention largely preserves limits on 
liability for damages related to delay, baggage, and cargo 
contained in the Warsaw Convention and the various protocols to 
it.

Jurisdiction Over Claims

    Article 33 of the Convention addresses jurisdiction over 
claims for damages under the Convention. It improves on the 
Warsaw Convention by adding what has been referred to as a 
``fifth jurisdiction'' for bringing claims for death or 
personal injury. Specifically, Article 33 permits claims 
relating to passenger death or injury to be brought against an 
air carrier in the courts of the country in which the passenger 
had his or her principal and permanent residence at the time of 
the accident, provided that two additional conditions are met: 
(1) the carrier provides service to or from that country either 
directly or via a code-share or other similar arrangement with 
another carrier, and (2) the carrier conducts business in that 
country from premises leased or owned by it or by a carrier 
with which it has a commercial arrangement, such as a code-
share arrangement. The Convention also preserves provisions of 
the Warsaw Convention providing jurisdiction for death and 
injury claims, as well as claims relating to delay, baggage, or 
cargo, in the country (1) of the domicile of the carrier; (2) 
of the carrier's principal place of business; (3) where the 
ticket was purchased; or (4) of destination of the passenger. 
Under Article 33, therefore, U.S. courts will have jurisdiction 
in nearly all cases involving death or personal injury to 
passengers who reside in the United States, thus eliminating 
the need for such passengers or their heirs to bring suit in 
foreign courts in order to obtain jurisdiction over air 
carriers.

Code-Share Liability

    Chapter V of the Convention addresses a practice of modern 
aviation: ``code-share'' arrangements between airlines in which 
two airlines share reservations or contracting operations. 
Under the provisions of this chapter, in instances in which a 
flight is operated under a code-share or similar arrangement, a 
passenger may bring a claim arising under the Convention 
against either the carrier from which he or she purchased a 
ticket or the carrier that actually operated the flight under 
the code-share or similar arrangement. Article 40 provides for 
the respective liability of the ``contracting carrier'' and the 
``actual carrier'' (terms that are defined by Article 39). 
These rules do not, however, create liability on the part of a 
carrier merely because of its participation in a code-share 
relationship. Where a passenger is traveling on a ticket 
purchased directly from the actual carrier, Article 40 provides 
that that passenger may only bring a claim against the actual 
carrier, and not against another carrier serving as a code-
share partner on the flight. Similarly, a carrier not actually 
operating the aircraft is liable only to those passengers to 
which it sold tickets.

Exclusivity

    Article 29 of the Convention provides that actions for 
damages related to the carriage of passengers, baggage, and 
cargo, whether under the Convention, in contract, in tort, or 
otherwise, can only be brought subject to the conditions and 
limits of liability set out in the Convention. This is 
consistent with U.S. decisional law under the Warsaw 
Convention. Four years ago, the Supreme Court ruled that the 
Warsaw Convention is the exclusive means by which passengers 
can seek damages for death or personal injury. El Al Israel 
Airlines, Ltd. v. Tseng, 525 U.S. 155 (1999). Article 29 also 
specifically provides that punitive, exemplary or other non-
compensatory damages shall not be recoverable.

Entry Into Force and Denunciation

    The Convention enters into force on the 60th day after the 
date of the deposit of the 30th instrument of ratification, 
acceptance, approval or accession to the Convention. As of the 
date of the Committee's hearing on the Convention, the 
Convention had not yet entered into force, but 29 countries had 
ratified it. Should the Convention enter into force prior to 
the United States becoming a party to it, the Convention would 
enter into force for the United States 60 days following the 
date of deposit of the United States' instrument of 
ratification, acceptance, approval or accession.
    Any party to the Convention may denounce the Convention by 
written notification to the Convention's depositary. Such 
denunciations take effect 180 days after the depositary's 
receipt of the notification.

                           THE HAGUE PROTOCOL

    The Protocol amends the 1929 Warsaw Convention for the 
Unification of Certain Rules Relating to International Carriage 
by Air. These instruments address the same subject matter as 
the more recent Montreal Convention discussed above.
    The Hague Protocol streamlines the Warsaw Convention's 
documentation requirements for international carriage of 
passengers, baggage, and cargo by limiting the information 
required to be included in cargo airway bills, passenger 
tickets, and baggage checks. It also narrows the circumstances 
under which failure to comply with such documentation 
requirements related to carriage of cargo would preclude the 
application of relevant carrier liability provisions. The 
Protocol also generally permits plaintiffs to recover court 
costs and other expenses of litigation they incur in connection 
with pursuing claims under the Warsaw Convention as amended.
    The Hague Protocol also amends Article 25 of the Warsaw 
Convention, which allows plaintiffs to exceed the liability 
limits of Article 22 under certain circumstances. Under the 
Warsaw Convention, the liability limits may be exceeded if it 
is proved that the damage is caused by the ``willful 
misconduct'' of the carrier. Under Article XIII of the Hague 
Protocol, the ``willful misconduct'' standard was modified with 
a description of the conduct itself. The Committee developed a 
record on this matter in an exchange of questions with the 
Executive Branch during the review of the Montreal Protocol No. 
4 in 1998. See S. Exec. Rept. 105-20, at 47, 52-53. This 
provision of the Hague Protocol is, however, unlikely to have 
much substantive effect on future litigation in the United 
States, because most carriers flying to and from this country 
are signatories to the 1996 inter-carrier agreements in which, 
by contract, the carriers waived the liability limits of the 
Warsaw system.

                      IV. Implementing Legislation

    No implementing legislation is necessary for either the 
Montreal Convention or the Hague Protocol.

                          V. Committee Action

    The Committee held a public hearing on these treaties on 
June 17, 2003 where it heard testimony from representatives of 
the Departments of State and Transportation (a transcript of 
this hearing and questions and answers for the record may be 
found in the appendix to this report). On July 23, 2003, the 
Committee considered these treaties and ordered them favorably 
reported by voice vote, with the recommendation that the Senate 
give its advice and consent to their ratification, subject to a 
reservation contained in the resolution of advice and consent 
to ratification to the Montreal Convention.

               VI. Committee Recommendation and Comments

    The Committee recommends that the Senate advise and consent 
to the ratification of both the Montreal Convention and the 
Hague Protocol. In the case of the Montreal Convention, the 
Committee recommends that the Senate's advice and consent be 
made subject to a reservation.
    The Committee recommends that the Senate's advice and 
consent to the Montreal Convention be made subject to a 
reservation that the Convention shall not apply to 
international carriage by air performed by the United States of 
America for non-commercial purposes in respect of the functions 
and duties of the United States of America as a sovereign 
state. This reservation is specifically contemplated by Article 
57 of the Montreal Convention, and was recommended by the 
Executive Branch when it transmitted the Convention to the 
Senate. The United States has made a similar reservation to its 
ratification of the Warsaw Convention; making this reservation 
to the Montreal Convention will thus serve to maintain the 
current exemption of such state-operated aircraft from 
regulation.

                    VII. Resolutions of Ratification


The Montreal Convention

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO RESERVATION.

    The Senate advises and consents to the ratification of the 
Convention for the Unification of Certain Rules for 
International Carriage by Air, done at Montreal May 28, 1999 
(T. Doc. 106-45, in this resolution referred to as the 
``Convention''), subject to the reservation in section 2.

SEC. 2. RESERVATION.

    The advice and consent of the Senate to the ratification of 
the Convention is subject to the following reservation, which 
shall be included in the instrument of ratification:
          Pursuant to Article 57 of the Convention, the United 
        States of America declares that the Convention shall 
        not apply to international carriage by air performed 
        and operated directly by the United States of America 
        for non-commercial purposes in respect to the functions 
        and duties of the United States of America as a 
        sovereign State.

The Hague Protocol

    Resolved (two-thirds of the Senators present concurring 
therein), That the Senate advises and consents to the 
ratification of the Protocol to Amend the Convention for the 
Unification of Certain Rules Relating to International Carriage 
by Air, signed at Warsaw on October 12, 1929, done at The Hague 
on September 28, 1955 (T. Doc. 107-14).
                             VIII. APPENDIX

                              ----------                              


            TREATIES RELATED TO AVIATION AND THE ENVIRONMENT

                              ----------                              


                                CONTENTS

                                                                    Page
Byerly, Mr. John R., Deputy Assistant Secretary of State for 
    Transportation Affairs, Department of State, Washington, DC...    17
    Prepared statement............................................    18
    Questions for the record on the Montreal Convention (Treaty 
      Doc. 106-45) and the Hague Protocol (Treaty Doc. 107-14) 
      submitted by:
        Senator Lugar.............................................    68
        Senator Biden.............................................    69
Shane, Hon. Jeffrey N., Under Secretary for Policy, U.S. 
    Department of Transportation, Washington, DC..................    12
    Prepared statement............................................    15
    Questions for the record on the Montreal Convention (Treaty 
      Doc. 106-45) and the Hague Protocol (Treaty Doc. 107-14) 
      submitted by:
        Senator Lugar.............................................    68
        Senator Biden.............................................    69
Turner, Hon. John F., Assistant Secretary of State for Oceans and 
    International Environmental and Scientific Affairs, Department 
    of State, Washington, DC......................................    25
    Prepared statement............................................    27
    Questions for the record on the U.S.-Russia Polar Bear Treaty 
      (Treaty Doc. 107-10) submitted by Senator Biden.............    93
    Questions for the record on the U.S.-Canada Albacore Tuna 
      Treaty (Treaty Doc. 108-1) submitted by Senator Biden.......    99
    Questions for the record on the Pacific Island States 
      Fisheries Treaty (Treaty Doc. 108-2) submitted by:
        Senator Lugar.............................................   100
        Senator Biden.............................................   101
    Questions for the record on the Stockholm POPs Convention 
      (Treaty Doc. 107-5) submitted by:
        Senator Biden.............................................   101
        Senator Feingold..........................................   109
        Senator Boxer on behalf of herself and Senators Jeffords, 
          Kerry and Sarbanes......................................   108
    Questions for the record on the Rotterdam PIC Convention 
      (Treaty Doc. 106-21) submitted by Senator Biden.............   109

             Additional Statements Submitted for the Record

Air Crash Victims Families Group, Hans Ephraimson, spokesman......    37
Air Transport Association of America, Inc.........................    40
American Chemistry Council, Larry W. Rampy, Product Stewardship 
    Team..........................................................    42
Alaska Nanuuq Commission, Charles H. Johnson, executive director..    44
Bering Sea Program, World Wildlife Fund, Margaret Williams, 
    director......................................................    45
Defenders of Wildlife, Mark L. Shaffer, Ph.D., senior vice 
    president, Programs...........................................    46
Environmental Technology Council, Scott Slesinger, vice president 
    for Governmental Affairs......................................    47
FedEx Express, Thomas F. Donaldson, vice president, Regulatory 
    Affairs.......................................................    51
Global Threats Program, World Wildlife Fund, Brooks B. Yeager, 
    vice president................................................    52
Jeffords, Hon. James M., U.S. Senator from Vermont................    61
Kerry, Hon. John F., U.S. Senator from Massachusetts..............    62
Madole, Juanita M., counsel to the law firm of Speiser Krause.....    63
Physicians for Social Responsibility, Karen L. Perry, deputy 
    director, Environment and Health Program......................    65

                              ----------                              


                         TUESDAY, JUNE 17, 2003

                                       U.S. Senate,
                            Committee on Foreign Relations,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 9:30 a.m. in room 
SD-419, Dirksen Senate Office Building, Hon. Richard G. Lugar 
(chairman of the committee), presiding.
    Present: Senators Lugar and Sarbanes.
    The Chairman. This hearing of the Senate Foreign Relations 
Committee is called to order. The committee meets today to hear 
testimony on a series of treaties on aviation and environmental 
issues. Within the Congress, the Senate Foreign Relations 
Committee is charged with the unique responsibility of 
reviewing treaties concluded by the administration, and our 
colleagues in the Senate depend on us to make timely and 
judicious recommendations on treaties. It's a serious 
responsibility, and I know that all members of the committee 
understand the importance of our role in this process.
    In advance of this hearing, the committee has worked hard 
with the administration to prepare a set of treaties for 
committee consideration on which there is substantial 
agreement. Committee staff have reviewed these treaties 
carefully. We have held a formal committee briefing, and 
administration representatives have been available to answer 
questions. I appreciate the support and cooperation of Senator 
Biden and his staff throughout this process.
    I'm pleased to welcome today representatives from the 
administration who are with us this morning, and our witnesses 
possess deep expertise on these treaties, most of which involve 
relatively esoteric matters of policy and international law.
    First of all, we will hear from Jeffrey Shane, Under 
Secretary for Policy at the Department of Transportation, and 
John Byerly, Deputy Assistant Secretary of State for 
Transportation Affairs. They will testify on two aviation 
agreements, the 1999 Montreal Convention for the Unification of 
Certain Rules for International Carriage by Air, and the 1955 
Hague Protocol to Amend the 1929 Warsaw Convention for the 
Unification of Certain Rules Relating to International Carriage 
by Air.
    These agreements update antiquated treaty rules that 
passengers rely on to protect their interests when they fly 
internationally. The treaties will improve the fairness and 
efficiency of the rules that govern how passengers on 
international flights are compensated for losses during air 
travel. These losses include both tragic cases involving the 
death or serious injury of passengers, and more routine cases 
involving minor injury or damage to property.
    The agreements also will fill gaps that currently exist in 
our web of treaty relationships, removing uncertainties faced 
by individuals and companies that ship cargo to and from 
countries with which we currently lack treaty relationships.
    Then we will hear from John Turner, Assistant Secretary of 
State for Oceans and International Environmental and Scientific 
Affairs. Assistant Secretary Turner will testify on five 
environmental treaties. Two of these treaties relate to 
hazardous chemicals. The Stockholm Convention on Persistent 
Organic Pollutants severely restricts the international 
production and use of a dozen toxic chemicals, the so-called 
dirty dozen. These chemicals include DDT, dioxin, and PCBs. All 
12 are already banned or severely restricted domestically by 
the United States. President Bush hailed this agreement when 
announcing the United States' decision to sign it in 2001. It 
represents a major step forward for international environmental 
protection.
    We also will hear testimony on the Rotterdam Convention on 
the Prior Informed Consent Procedure for Certain Chemicals in 
International Trade. This agreement will help to ensure that 
hazardous chemicals are not transported across national borders 
without the prior knowledge and consent of the importing 
country. It builds on a set of existing voluntary procedures 
that are used by more than 150 countries, including the United 
States.
    Mr. Turner will then testify on three treaties related to 
fish and wildlife. Two of these agreements amend existing 
fisheries treaties, one with Canada and the other with Pacific 
Island states. The other is a treaty with Russia to help 
conserve the polar bear population, chaired by the United 
States and the Russian Federation.
    I understand that these seven treaties enjoy wide support 
among the constituencies whose interests they affect. The 
committee welcomes statements or briefing materials on the 
treaties from any interested party. These statements should be 
submitted to the committee by the end of this week.
    I commend the United States officials who have worked on 
these agreements for successfully negotiating documents that 
command wide support. Some of these agreements are the product 
of years of dedication and patient negotiations. Prompt 
ratification of these agreements will help the United States 
continue to play a leadership role internationally on these 
issues and will serve to advance United States' interests. It 
is my hope that our committee will report resolutions of 
ratification on each of these agreements prior to the August 
recess. Today's hearing is an important step in this process.
    I look forward to the contributions of our witnesses. I 
would suggest that we proceed by hearing first from Mr. Shane 
and Mr. Byerly on the aviation treaties, and following 
questions on those treaties, I will excuse these witnesses, 
because Mr. Byerly needs to catch an international flight. We 
will then proceed to hear from Mr. Turner on the environmental 
treaties and settle into those five treaties later on in the 
hearing.
    It is a real privilege to have each one of you before us 
today, and I would like to call upon you, Mr. Byerly, for your 
testimony, or Mr. Shane, if that is your preference. Perhaps 
you gentlemen have worked out a modus vivendi for the hearing.

STATEMENT OF HON. JEFFREY N. SHANE, UNDER SECRETARY FOR POLICY, 
       U.S. DEPARTMENT OF TRANSPORTATION, WASHINGTON, DC

    Mr. Shane. Yes, Mr. Chairman, we have, and good morning, 
Mr. Chairman. It is a great pleasure to appear before you today 
to urge that the Senate give its advice and consent to 
ratification of the 1999 Montreal Convention, and the 1955 
Hague Protocol.
    As you've indicated in your opening remarks, these two 
treaties will facilitate a long overdue modernization of the 
rules governing airlines' liability to passengers and shippers 
during international flights. It's a special pleasure for me to 
be here together with my friend and colleague of many years, 
John Byerly, who has been a real partner in this long 
enterprise.
    Mr. Chairman, I have a longer prepared statement that I 
would ask to be submitted to the record.
    The Chairman. Your statement will be published in the 
record in full, and that will be true for you, Mr. Byerly and 
Mr. Turner, so each one of you know that you will have that 
privilege, and please proceed in any way you wish.
    Mr. Shane. Thank you, Mr. Chairman. I'll just try to 
summarize the longer statement.
    The Montreal Convention was signed by the United States and 
51 other countries on May 28, 1999. To date, 29 countries have 
ratified it, just one short of the 30 that are needed to become 
effective. This new treaty will replace the outdated 1929 
Warsaw Convention, and represents the culmination of a 40-year 
effort by the Department of Transportation, the State 
Department, families' organizations, and many others to 
increase the clearly inadequate passenger liability limits that 
are currently in place under the Warsaw Convention.
    Absent an airline's voluntary waiver of the Warsaw 
liability limits, recoveries for death or injury during an 
accident that occurs on an international flight to or from the 
United States are currently subject to a limit of $75,000 per 
passenger. That limit has been in place since 1966, and was 
really a product of an agreement extracted by the Civil 
Aeronautics Board. The truth is that the limit in many foreign 
markets is actually much less than that.
    Ratification of Montreal 1999 would bring about a number of 
important improvements. Most important, the new convention 
entirely eliminates all artificial monetary limits on 
recoveries from the airline for proven damages with respect to 
the death or injury of a passenger during an international 
airline mishap. First, it establishes strict liability on the 
part of the airline for proven damages up to 100,000 special 
drawing rights, or approximately $141,000 under the current 
conversion rate. That means in any accident there will be 
automatic recovery of $141,000, regardless of whether the 
airline was actually at fault.
    Second, the convention permits the recovery of additional 
proven damages above 100,000 SDRs without any limit whatsoever. 
The only exception would be a case in which the airline was 
able to show that it was not responsible for any of the damage 
done, or that the damage was solely due to the responsibility 
of a third party.
    A second major passenger benefit provided by the Montreal 
Convention is the right of claimants to bring action in a forum 
related to the passenger's principal and permanent residence. 
This provision will ensure in the vast majority of cases that 
an injured American passenger or a claimant on behalf of a 
deceased American passenger will be able to bring action in a 
U.S. court. Under Warsaw, not only are the limits of recovery 
hopelessly inadequate, and worst of all in many foreign-to-
foreign markets, but Americans have no assurance that they can 
even sue in a U.S. court.
    The convention also includes provisions that clarify the 
liability regime for cooperative marketing arrangements such as 
code-sharing. For air travel pursuant to a code-sharing 
agreement, both the operator of the aircraft and the carrier 
whose airline code is used for ticketing purposes are jointly 
liable to the passenger.
    Finally, for the carriage of air cargo, the new convention 
retains the important improvements brought about by Montreal 
Protocol Number 4, which became effective in the United States 
in March 1999. The most conspicuous advance in that treaty 
permitted the use of state-of-the-art electronic data 
transmission in documenting air cargo shipments, an efficiency 
that was seriously impeded by the old Warsaw Convention 
documentation requirements.
    I'm also here today to express the administration's hope 
that the Senate will give advice and consent to ratification of 
a second aviation treaty, the 1955 Hague Protocol to the Warsaw 
Convention. Like the Montreal Convention, the Hague Protocol 
contains provisions that modernize the rules governing airline 
liability for damage to air cargo, notably, again, the rules 
governing the documentation of air freight shipments.
    You may wonder why we are proposing ratification of Hague, 
when Montreal Protocol Number 4, which is already in force for 
the United States, does even more to modernize the air cargo 
liability regime, and when that protocol's improvements are 
incorporated in the Montreal Convention that I was just 
discussing and that we hope will take effect shortly.
    The reason is that it will be some time before all possible 
shipments to and from the United States are covered, either by 
the benefits of Montreal Protocol 4 or the 1999 Montreal 
Convention. In the interim, it is important to assure that at 
least the Hague documentation improvements prevail in 
situations where the origin or destination of the cargo is in a 
country that has not ratified either Montreal Protocol 4 or the 
Montreal Convention.
    To illustrate the point, recent litigation has created 
uncertainty about whether the Hague documentation provisions 
would apply between the United States, which is not currently a 
party to Hague, and countries that are party to the Hague, but 
not party to Montreal Protocol 4.
    Ratification of the Hague Protocol by the United States 
would resolve this issue once and for all, and it is important 
to do so immediately because the vast majority of countries 
that have not yet ratified Montreal Protocol 4 or the Montreal 
Convention have ratified Hague. U.S. ratification of Hague, in 
other words, would facilitate the use of modern documentation 
in almost all cargo movements between the United States and 
other countries, even prior to the expected worldwide adoption 
of the Montreal Convention, and it is therefore strongly 
supported by our airlines.
    In conclusion, Mr. Chairman, let me just note that prompt 
ratification of the Montreal Convention of 1999 has been called 
for by victims' families' organizations, the airline industry, 
plaintiffs' and defense lawyers, and manufacturers of aircraft 
and aircraft engines. In all the years that I've been privy to 
this effort, and that's a lot of years, Mr. Chairman, I have 
never seen so broad and so deep a consensus about what the 
United States must do now. After so many years of work by so 
many interested groups, I am pleased to report that 
ratification now would be a unanimously celebrated win-win 
achievement of historic significance.
    That concludes my prepared statement. I would certainly be 
prepared to answer any questions you may have afterwards.
    [The prepared statement of Mr. Shane follows:]

  Prepared Statement of Jeffrey N. Shane, Under Secretary for Policy, 
                   U.S. Department of Transportation

    Chairman Lugar, Senator Biden and Members of the Committee, it is 
with great pleasure that I appear before you today in support of Senate 
ratification of the 1999 Montreal Convention and the 1955 Hague 
Protocol. Together, these two treaties will facilitate a long overdue 
modernization of the rules governing airlines' liability to passengers 
during international flights.
                      montreal convention of 1999
    The Montreal Convention was signed by 52 countries, including the 
United States, on May 28, 1999. To date, 29 countries have ratified the 
Convention, just one short of the 30 needed for it to become effective. 
This new Convention is intended to replace the outdated 1929 Warsaw 
Convention and the regime that has developed around it. It represents 
the culmination of a 40-year effort, by the Department of 
Transportation, the State Department and many others, to rectify the 
injustices to international airline passengers and their families 
created by the archaic and now grossly inadequate passenger liability 
limits established under the Warsaw Convention. Currently, absent a 
voluntary waiver of the Warsaw liability limits by a carrier, 
recoveries for deaths or injuries arising as the result of an accident 
that occurs during an international flight to or from the United States 
are subject to a limit of $75,000, and can be limited to as little as 
$10,000 for flights in other markets, unless the passenger or the 
passenger's estate is able to prove ``willful misconduct'' on the part 
of the airline.
    Ratification of Montreal 1999 would therefore facilitate a long 
overdue modernization of the liability regime governing international 
air travel.
    First and foremost, the new Convention entirely eliminates all 
artificial monetary limits on recoveries from the airline for proven 
damages with respect to the death or injury of a passenger occurring as 
the result of an international airline accident. It also provides for 
``strict'' liability--recoveries regardless of the carrier's fault--for 
proven damages up to 100,000 Special Drawing Rights, or approximately 
$141,000 under the current conversion rate.
    Moreover, there would be no limit on the recovery of additional 
proven damages. Above the 100,000 SDR amount, the airline would retain 
its ability to show that the damage done was either not due to its own 
negligence or other wrongful act or omission or that the damage was 
solely due to the negligence or other wrongful act or omission of a 
third party. If a third party were only partially at fault, the carrier 
would remain liable as joint tortfeasor. In other words, if both the 
carrier and, for example, an aircraft repair station were each 
partially negligent, the carrier would be liable for the full amount of 
the proven damages, subject to contribution toward the recovery by the 
repair station.
    Another major passenger benefit provided by this Convention--not 
available under the Warsaw Convention--is the right of claimants to 
bring their action in a forum based on the passenger's principal and 
permanent residence. This provision will assure, for the vast majority 
of cases, that an injured American passenger or a claimant acting on 
behalf of a deceased American passenger would be able to bring action 
in a U.S. court. Under the Warsaw Convention, when a ticket is 
purchased on a foreign carrier outside the United States and the 
destination is also a place outside the United States, claims arising 
out of an accident on such a flight could not be brought in the United 
States. Under the new Convention, an action on behalf of a U.S. citizen 
or other passenger that was permanently resident in the United States 
at the time of the accident may be brought in a U.S. court as long as 
the carrier meets certain reasonable tests to determine whether it has 
a commercial presence in the United States, including through code 
sharing operations with other carriers.
    The new Convention also includes provisions that clarify the 
liability regime for cooperative marketing arrangements such as code 
sharing. One very important aspect of these provisions is the 
clarification that, for carriage pursuant to a code-sharing agreement, 
both the operating carrier on whose aircraft the accident occurs and 
the carrier whose airline designator code is used for ticketing 
purposes are jointly liable to the passenger. Given the proliferation 
of code-share arrangements through the global alliances that have 
developed in recent years, this is a significant and important new 
protection for international air travelers.
    Finally, for the carriage of air cargo, the new Convention retains, 
in all substantive respects, the important improvements brought about 
by Montreal Protocol No. 4, which became effective in the United States 
on March 4, 1999. Probably the most conspicuous advance in that treaty 
permitted the use of state-of-the-art electronic data transmission in 
documenting air cargo shipments. The Warsaw Convention's documentation 
requirements are wholly out of step with today's just-in-time, 
information-technology-driven approach to logistics. The new Montreal 
Convention retains those critical provisions. Importantly, the new 
Convention also has a provision for periodic inflation-related 
adjustments of the liability limits for baggage, cargo, delay, and the 
level up to which ``strict'' liability applies for passenger deaths and 
injuries.
    As I indicated at the outset, in order to become effective the new 
Convention requires 30 ratifications to come into force. Twenty-nine 
ratifications already have been deposited with the International Civil 
Aviation Organization and so we have every reason to anticipate that 
the new treaty will enter into force very soon. It would be both 
unfortunate and ironic if it did not enter into force for the United 
States--one of the principal advocates of a more humane liability 
regime for international passenger travel--because we ourselves had not 
yet ratified it. It also seems clear that many more countries will 
ratify this Convention once the United States does so. Accordingly, if 
the Senate were to ratify this Convention, we anticipate that it would 
be very widely adhered to, just as the predecessor Warsaw Convention 
was.
                        the 1955 hague protocol
    I am also here today to articulate the Department's strong support 
for ratification of the 1955 Hague Protocol to the Warsaw Convention. 
The Hague Protocol amended the Warsaw Convention. Montreal Protocol No. 
4, which updates the liability regime for air cargo in important ways, 
is actually an amendment of the Warsaw Convention as amended by the 
Hague Protocol. Montreal Protocol No. 4--which became effective for the 
U.S. in 1999--is in fact predicated on cargo documentation improvements 
that first appeared in the Hague Protocol, although the new Protocol 
refined those provisions even further.
    Unfortunately, because Hague contained such low passenger liability 
limits--a ceiling on recoveries of $20,000 per passenger--the U.S. was 
not willing to ratify it until now. In effect, we intentionally 
sacrificed an opportunity to update the air cargo liability regime 
through Hague because of its inadequate benefits for passengers.
    You may wonder why we are proposing ratification of Hague now, when 
its modernization of the air cargo liability regime has already been 
accomplished--and more--in Montreal Protocol No. 4. The reason is that 
it will be some time before all possible journeys are covered by the 
benefits of Montreal Protocol No. 4 or the 1999 Montreal Convention. In 
the interim, it is important to assure that the Hague documentation 
improvements would prevail in situations where the origin and 
destination of the cargo is in a country that had not ratified either 
Montreal Protocol No. 4 or the Montreal Convention.
    Recent litigation has drawn attention to the question of whether 
the Hague documentation provisions would apply as between the United 
States and countries that are party to the Hague Protocol, but not to 
Montreal Protocol No. 4. Ratification of the Hague Protocol would 
eliminate this issue. It is important to do so because the vast 
majority of countries that have not yet ratified Montreal Protocol No. 
4 or the Montreal Convention have ratified Hague. U.S. ratification of 
Hague therefore would facilitate the use of modem documentation in 
almost all cargo movements between the U.S. and other countries, even 
where those other countries have not yet ratified Montreal Protocol No. 
4 or the Montreal Convention. Ratification of the Hague Protocol thus 
is deemed essential by our airlines.
    The problem of the low passenger liability limits contained in the 
Hague Protocol should no longer be an impediment to its ratification. 
Recognizing the inadequacy of existing passenger liability limits under 
the Warsaw-Hague regime, most of the world's major airlines signed 
intercarrier agreements in 1996 that waive the Warsaw-Hague passenger 
liability limits in their entirety. Many have also agreed to pay up to 
100,000 Special Drawing Rights to accident victims regardless of 
whether the carrier was negligent or not. Thus, in those situations 
where the Montreal Convention of 1999 does not apply, but where Hague 
would apply if ratified for the purpose of modernizing the air cargo 
regime more widely, these voluntary carrier agreements will go a long 
way towards filling the residual passenger liability gap until the 
Montreal Convention of 1999 is more widely adopted.
    Prompt ratification of the Montreal Convention of 1999 has been 
called for by victims' families' organizations, the airline industry, 
plaintiffs' and defense lawyers, and manufacturers of aircraft and 
aircraft engines. After years of work by a great many interested 
groups, I am pleased to report that ratification now would be a win-win 
achievement of historic significance.
    That concludes my prepared statement. I would be pleased to answer 
any questions you may have.

    The Chairman. Thank you very much, Mr. Shane.
    Mr. Byerly, do you have additional comments?

  STATEMENT OF JOHN R. BYERLY, DEPUTY ASSISTANT SECRETARY OF 
    STATE FOR TRANSPORTATION AFFAIRS, DEPARTMENT OF STATE, 
                         WASHINGTON, DC

    Mr. Byerly. Yes, sir, and thank you very much, Mr. 
Chairman, for the opportunity to be before this committee 
today, and thank you also for accommodating my need to travel 
to Europe this evening. That is very courteous and kind of you.
    Under Secretary Shane has outlined what these two treaties 
would accomplish, and why ratification is so clearly in our 
Nation's interest. With your permission, I have submitted my 
written testimony for the record, and I will very briefly 
summarize four points I would wish to underscore.
    The Chairman. Very well.
    Mr. Byerly. First, our country has an historic opportunity 
today. For almost half a century, America has sought to alter 
and to improve the airline accident liability regime 
established in 1929 by the Warsaw Convention, a treaty that was 
negotiated in the infancy of commercial aviation and one that 
is clearly inadequate today. It has been that way for a long 
time.
    In fits and starts, the United States achieved partial 
improvements over the years, but it was only in 1999, with the 
landmark negotiation of the Montreal Convention, that we 
achieved the full breakthrough that was needed. This convention 
eliminates entirely the artificial caps on liability which are 
the bane of the Warsaw system. It also incorporates the so-
called fifth basis of jurisdiction, which will allow access to 
U.S. courts for virtually all American accident survivors and 
the families of American victims of airline accidents.
    A second and related point, the Montreal Convention, if 
ratified, will make a true difference in the lives of American 
citizens. It will facilitate prompt assistance to survivors and 
to the relatives of victims. It will bypass time-consuming 
litigation over the myriad complexities of the Warsaw legal 
patchwork, and it will also end the burden imposed on so many 
American families of having to pursue legal redress far from 
home, in foreign legal systems, at great expense, and with huge 
uncertainty.
    The third point I would wish to make is that ratification 
by the United States will ensure that the Montreal Convention 
enters into force this year. This action would permit us at the 
State Department, at DOT, and at our embassies abroad to go 
forth and persuade the rest of the world to join us as parties 
to this historic treaty. It will be our goal to achieve for the 
Montreal Convention the same virtually universal adherence that 
applied in the past to Warsaw.
    With the approval of your committee, and with the advice 
and consent of the Senate, we can seize this unique 
opportunity. We can make an enormous difference for every 
American who suffers or whose family members suffer the tragedy 
of an airline accident, and we can change the legal framework 
of international aviation forever, and for the better.
    My fourth and final point concerns the Hague Protocol. 
Pending wide adherence to the Montreal Convention by other 
countries, U.S. ratification of Hague would provide important 
interim modernization of the cargo rules, benefiting both 
shippers and consumers as well as airlines.
    Mr. Chairman, so many have worked for decades to accomplish 
the legal breakthrough represented in the Montreal Convention, 
and many of them are in this room today. Hans Ephraimson, who 
lost his daughter in the KAL-007 tragedy and is spokesman of 
the Air Crash Victims Families Group; Allan Mendelsohn, my 
predecessor in two jobs in the State Department and a 
contributor to this effort over the years; Don Horn and Peter 
Schwarzkopf of the General Counsel's office at the Department 
of Transportation; and Jennifer Gergen, Sam Witten, and David 
Newman of the Legal Advisor's office at State are among so many 
who have contributed and sought to achieve what was 
accomplished in 1999 in Montreal, and which we can embark on 
right now.
    I'm both honored and humbled to be among them and to come 
before you today to request that the Senate give its advice and 
consent to ratification of these two treaties.
    Thank you.
    [The prepared statement of Mr. Byerly follows:]

  Prepared Statement of John R. Byerly, Deputy Assistant Secretary of 
         State for Transportation Affairs, Department of State

    Mr. Chairman and Members of the Committee:
    I welcome the opportunity to present, together with the Department 
of Transportation, the views of the Administration regarding the 
Convention for the Unification of Certain Rules for International 
Carriage by Air, Done at Montreal 28 May 1999 (``the Montreal 
Convention'' or the ``Convention'') and the Protocol to Amend the 
Convention for the Unification of Certain Rules Relating to 
International Carriage by Air Signed at Warsaw on October 12, 1929, 
Done at The Hague September 28, 1955 (``The Hague Protocol'' or ``the 
Protocol'').
                              introduction
    We urge the Senate to seize an historic opportunity to give its 
advice and consent to ratification of these two important treaties. For 
almost half a century, the United States has sought to replace the 
outmoded airline accident liability system established by the Warsaw 
Convention of 1929. The Montreal Convention would do just that and can 
make a real difference in the lives of American citizens by abolishing 
unreasonable liability limits and allowing most American accident 
victims and their families to seek redress in U.S. courts against 
foreign airlines. The Convention would modernize and clarify other 
aspects of the international airline accident liability system, 
including the rules applicable to code-share flights and to liability 
for the carriage of cargo. Pending wide adherence to the Montreal 
Convention by other countries, U.S. ratification of The Hague Protocol 
would provide important interim modernization of the cargo rules, which 
recent litigation has shown to be needed.
    With the advice and consent of the Senate, the United States can be 
among the initial group of countries ratifying the Montreal Convention. 
Once we have acted, we will undertake a broad global effort to urge 
additional countries to join us, with the goal of achieving universal 
adherence.
    The Administration seeks the advice and consent of the Senate to 
ratification of the Montreal Convention subject to a declaration to be 
made on behalf of the United States that the Montreal Convention shall 
not apply to international carriage by air performed and operated 
directly by the United States for non-commercial purposes in respect to 
its functions and duties as a sovereign State. Such a declaration would 
be consistent with the declaration made by the United States under the 
Convention for the Unification of Certain Rules Relating to 
International Transportation by Air, Done at Warsaw 12 October 1929 
(the ``Warsaw Convention'') and is specifically permitted by the terms 
of the Montreal Convention.
                        the montreal convention
    The Montreal Convention is a remarkable accomplishment for U.S. 
aviation policy and U.S. diplomacy. The U.S. delegation at the 
diplomatic conference that negotiated this agreement in May of 1999 
achieved all of America's core objectives. The new Convention has the 
potential to eliminate the patchwork of airline liability regimes 
around the world and replace it with a new, uniform set of rules 
appropriate for today's airlines and today's passengers and shippers.
    Indeed, the 1999 Montreal Convention is the culmination of almost a 
half century of efforts by the United States to increase, and later to 
eliminate, the unconscionably low limits of liability applicable under 
the 1929 Warsaw Convention when passengers are killed or injured in 
international air carrier accidents. The Convention contains all of the 
key provisions sought by the United States at the outset of the 
negotiations. At the same time, since major portions of the Convention 
are based on, and generally follow the language of, the 1929 Warsaw 
Convention and a related protocol to which the United States is already 
a party (Montreal Protocol No. 4), prior judicial interpretations under 
those treaties are expected to have continuing validity.
                 benefits under the montreal convention
    The significant new benefits of the Montreal Convention include:

   The new Convention eliminates the meager and arbitrary 
        limits of liability applicable under the Warsaw Convention when 
        passengers are killed or injured in international air carrier 
        accidents. These limits applied in all cases, except where the 
        harm was due to the carrier's willful misconduct.

   Under the Convention, in almost every case, American 
        survivors of international aircraft accidents and the families 
        of American accident victims will have access to U.S. courts in 
        seeking damages for the losses they suffered.

   The Convention requires air carriers to make payments of up 
        to approximately $141,000 of proven damages on behalf of 
        accident victims, without regard to whether the airline was 
        negligent.

   An escalation clause provides that monetary limits and 
        thresholds that survive in the Convention will be adjusted for 
        inflation.

   Provisions on code sharing and similar arrangements clarify 
        that when the airline operating a flight is not the airline 
        from which the transportation was purchased, a passenger may 
        recover from either the airline operating the aircraft at the 
        time of the accident or the airline whose code is carried on 
        the passenger's ticket.

   The Convention furthers U.S. efforts to ensure that U.S. air 
        cargo carriers and shippers can take advantage of technological 
        innovations now available to facilitate and expedite the 
        processing of international air cargo.

   The Convention simplifies litigation and promotes fairness 
        through the passenger benefits described above, including 
        eliminating all arbitrary limits on compensatory damages for 
        passenger death and injury claims, among others, and by barring 
        non-compensatory damages in all cases, consistent with existing 
        law; and by establishing, in clear language, its exclusivity in 
        the area of claims for damages arising in the international 
        transportation of passengers, baggage and cargo.

   While the Convention provides essential improvements upon 
        the Warsaw Convention in many respects to improve the rights of 
        passengers, it also preserves established law relating to other 
        aspects of the Warsaw Convention that were acceptable, to avoid 
        unnecessary litigation. For example, the Convention preserves 
        the status quo relative to legal actions against airline 
        employees (Articles 30, 43). Consistent with existing law in 
        the United States, the Montreal Convention extends to a 
        carrier's employees acting within the scope of their employment 
        all of the ``conditions and limits of liability'' available to 
        the carrier under the Convention--referring to the monetary 
        limits set out in Articles 21 and 22 of the Convention and the 
        conditions under which those monetary limits may be exceeded.

    The Montreal Convention has been signed by 71 countries, and has 
been ratified by 29 countries to date--only 1 short of the 30 required 
to bring the Convention into effect. In addition, given the importance 
of the United States and its airlines in international aviation, many 
countries are thought to be awaiting U.S. ratification before taking 
action themselves.
         history of efforts to modernize the warsaw convention
    To date, in the area of claims for damages arising in the 
international transportation of passengers, baggage and cargo, the 
United States has ratified only the Warsaw Convention and the Protocol 
to Amend the Convention for the Unification of Certain Rules Relating 
to International Carriage by Air, Done at Warsaw 12 October 1929 as 
Amended by the Protocol Done at The Hague 28 September 1955, Done at 
Montreal 25 September 1975 (``Montreal Protocol No. 4'')
    Under Montreal Protocol No. 4, which entered into force for the 
United States on March 4, 1999, the Warsaw Convention's rules relating 
to international air cargo operations were fully modernized. However, 
only 51 states are parties to Montreal Protocol No. 4. Moreover, the 
Warsaw Convention's unamended provisions relating to airline liability 
for death or injury to passengers are grossly inadequate. There were 
several attempts to modernize those provisions through international 
negotiations, but those efforts were unsuccessful.

   In the early 1950s, multilateral negotiations achieved only 
        a doubling of the original Warsaw Convention's per passenger 
        liability limit (to what is now approximately $20,000), as 
        codified in The Hague Protocol of 1955. The United States did 
        not ratify The Hague Protocol.

   Efforts to amend the Warsaw Convention in 1975 focused on 
        cargo issues, including the negotiation of Montreal Protocol 
        No. 4, which modernized Warsaw Convention provisions relevant 
        to the air-cargo industry. The United States ratified Montreal 
        Protocol No. 4 in 1998. In the area of airline liability for 
        passenger claims, provisions developed in a protocol done at 
        Guatemala City in 1971 were incorporated into Montreal Protocol 
        No. 3 (1975), but neither instrument was ratified by the United 
        States or entered into force.

   In the absence of progress on airline liability for 
        passenger deaths or injuries at the intergovernmental level, 
        the major carriers of the world stepped into the breach, first 
        in 1966 and again in 1996 with the encouragement of the Civil 
        Aeronautics Board and Department of Transportation, 
        respectively. An inter-carrier agreement in 1966 raised 
        liability limits for airlines serving the United States to 
        $75,000 per passenger. A 1996 inter-carrier agreement provided 
        for airlines to waive liability limits with respect to claims 
        for passenger injury or death. Although these private 
        agreements provided a reasonable interim fix, the inter-carrier 
        agreements are not an adequate substitute for international 
        agreements, particularly in light of their narrow focus and 
        their voluntary nature.

    In response to the inadequacy of the Warsaw Convention liability 
limits, a number of States have adopted domestic laws or regulations, 
further complicating the maze of rules comprising the international 
liability regime. The Montreal Convention has the potential to end the 
patchwork of airline liability regulation. U.S. consumers of 
international air transportation will benefit from its modernized 
liability provisions, and U.S. airlines will benefit from a uniform 
international liability regime and a leveling of the playing field in 
relation to airlines that now benefit from more limited liability 
regimes.
                        the 1955 hague protocol
    The President has also submitted for Senate advice and consent to 
ratification the 1955 Hague Protocol to the Warsaw Convention. U.S. 
ratification of The Hague Protocol would clarify for the cargo industry 
the rules on cargo documentation that apply to the carriage of cargo 
between the United States and 86 countries that are parties to that 
instrument, but not to Montreal Protocol No. 4. It would secure for 
U.S. carriers application of The Hague Protocol provisions in such 
cases, which significantly streamline the antiquated cargo 
documentation requirements of the Warsaw Convention.
    Although The Hague Protocol also doubles the Warsaw Convention 
passenger liability limit to what is now approximately $20,000, the 
inter-carrier agreements of 1966 and 1996 have, as a practical matter, 
superseded this meager recovery limit.
    A recent U.S. court decision (Chubb & Son, Inc. v. Asiana Airlines, 
214 F.3d 301 (2d Cir. 2000), cert. denied, 533 U.S. 928 (2001)) held 
that, where the United States had ratified the Warsaw Convention but 
had not ratified The Hague Protocol, and the Republic of Korea had 
ratified The Hague Protocol but not the Warsaw Convention, Korea's 
adherence to The Hague Protocol did not make it a party to the 
unamended Warsaw Convention and there were no treaty relations between 
the United States and Korea under either instrument.
    Although the Chubb decision did not address Montreal Protocol No. 
4, which entered into force in 1999 for the United States, it focused 
industry attention on the question of whether the United States, by 
reason of its adherence to Montreal Protocol No. 4, automatically 
became a party to The Hague Protocol as such and therefore entered into 
treaty relations under The Hague Protocol with other countries party to 
that instrument (but not to Montreal Protocol No. 4).
    If the courts were to conclude that Montreal Protocol No. 4 does 
not create treaty relations under The Hague Protocol, the United 
States' treaty relations with the 79 countries that are parties to both 
the Warsaw Convention and The Hague Protocol, but not to Montreal 
Protocol No. 4, would be based on the Warsaw Convention, unamended by 
any later protocol, at least until such countries become parties to the 
new Montreal Convention. (Nine of these countries have ratified the 
Montreal Convention so far.) Further, in that situation, the United 
States would have no treaty relations whatsoever under the Warsaw 
Convention system with Korea and six other countries that are parties 
only to The Hague Protocol. (None of these seven countries has ratified 
the Montreal Convention to date.)
    This is an unsatisfactory result. The 1929 Warsaw Convention 
contains outdated rules in the area of cargo documentation, requiring 
much specific information on the air waybill that has no commercial 
significance today. These requirements: make international air cargo 
transactions time consuming and inefficient, driving up their costs; 
inhibit the free flow of international air commerce; and serve as a 
barrier to electronic information exchanges. Under the Warsaw 
Convention, U.S. cargo carriers must comply with these outmoded 
documentation rules or risk deprivation by courts of the Convention's 
benefits.
    Ratification of The Hague Protocol will eliminate any ambiguity and 
secure for the U.S. industry The Hague Protocol's more modern cargo 
documentation rules, which are critical to the efficient movement of 
air cargo, in relations with the 86 countries party to that instrument 
(but not to Montreal Protocol No. 4), pending the entry into force and 
widespread ratification of the Montreal Convention.

    The Chairman. Thank you very much, Mr. Byerly. I appreciate 
your recognition of a number of persons who have worked with 
you and worked on behalf of ratification of these treaties.
    Let me ask some basic questions which are covered in your 
statements, just to underline my understanding and that of 
those who may be reading this record. When you have mentioned, 
Mr. Byerly, that the Montreal Protocol would clear up the 
problem of attempting to bring suits or legal action in far-off 
countries, do you mean by this that an American citizen who was 
aggrieved could seek redress in American courts? In other 
words, how does this simplification occur?
    Mr. Byerly. Precisely as you stated, Mr. Chairman. The 
Montreal Convention creates for the first time a basis of 
jurisdiction, the so-called fifth basis of jurisdiction, in 
addition to the four bases of jurisdiction in which the courts 
of any State party to the Warsaw system could hear a case. This 
allows jurisdiction by the U.S. courts not only in cases 
against an airline that is domiciled or has its principal place 
of business here, or where the passenger's destination was the 
United States, or where the passenger made the contract for 
carriage in the United States, but in addition, where the 
passenger has his principal and permanent residence in all 
cases where the carrier serves the United States, with its own 
aircraft or through a commercial agreement such as code-
sharing, and that carrier has a presence here. It can have that 
presence either itself, in its own name, or through a code-
share partner. Given the vastness of the United States' 
aviation relations with countries and carriers around the 
world, virtually all American citizens who are injured or 
killed in airline accidents should be able to obtain access to 
U.S. courts through this fifth basis of jurisdiction.
    This has been a longstanding objective of the United 
States. It was one that was opposed by many others, and in 
achieving that in 1999, we achieved the breakthrough that was 
critical, and that we had sought for decades.
    The Chairman. Now, as you pointed out, 29 states ratified 
Montreal. Presumably, if the U.S. Senate and our Government 
ratifies, we're the 30th, which brings it into force. How soon 
will it be brought into force, just in a technical way? At what 
point do the provisions begin to prevail?
    Mr. Byerly. Upon the deposit of the instrument of 
ratification by the 30th state with the International Civil 
Aviation Organization in Montreal, 60 days after that date the 
treaty enters into force as among the parties to the treaty.
    The Chairman. Now, I can understand the desire of those who 
have suffered losses to eliminate the limits that were involved 
previously. What has been the position of the airlines, both 
domestic carriers, and those with whom you have negotiated 
abroad? In other words, have they perceived in this some type 
of virtually unlimited liability that would be ruinous to a 
national airline, for example, in which sometimes countries 
vest considerable prestige. I'm just simply curious about the 
evolution of the negotiations which have led the parties to 
this agreement.
    Mr. Shane. Mr. Chairman, the Warsaw Convention has really 
been pernicious in its effects, so pernicious that both 
airlines and claimants have been disadvantaged by it. The 
airline industry itself, recognizing that the reform of the 
Warsaw system was going to take some time, took it upon itself 
to actually enter into an intercarrier agreement. They have 
done that both within the United States and also globally for 
purposes of voluntarily waiving some of these really atrocious 
limits on liability, simply in order to provide more humane 
treatment of claimants in the aftermath of an accident.
    What they want, however, rather than simply having a 
voluntary agreement, which would obviously lead to some 
different effects in different jurisdictions, is to go back 
again to a global treaty like the Warsaw Convention, which 
would have absolutely uniform application everywhere, and that 
provides the stability and the predictability that the airline 
industry needs. There was no argument with the industry 
whatsoever about the importance of taking those artificial 
limits off.
    There are, as I mentioned in my statement, some specific 
defenses that are available where the airline can say it 
actually had nothing to do with the cause of the accident. 
Those will be pretty rare instances, I think. The industry 
feels that this is the best approach, and so there really has 
not been a disagreement with the industry at all on this 
important point.
    The Chairman. As you pointed out in that last response, the 
Warsaw Treaty is comprehensive. At this point, Montreal, with 
our ratification, would have 30 countries, which is obviously 
somewhat less than that. What does that mean in a common sense 
way, if a citizen is unlucky enough to be flying on an airline 
that does not have at least a country that has ratified this? 
Presumably you fall back on the Warsaw Convention or others, 
but--in other words, as a practical matter, how rapidly do the 
Montreal provisions come into effect, how comprehensive are the 
30 countries that will have ratified it?
    Mr. Byerly. Thirty countries will, of course, be 30 
countries.
    The Chairman. What percentage may be of the airlines of the 
world, or the air traffic, do you have any idea?
    Mr. Shane. I don't have any idea of what the 30 countries 
would represent in terms of coverage, but we don't intend by 
any means to stop at 30. What's very clear is, a lot of 
countries are sitting on the fence right now waiting to see 
what we do. If the United States ratifies, and we anticipate 
that that will be the result, then it's fair to say that you 
will see a real avalanche of additional ratifications.
    The Warsaw Convention is the most widely subscribed to 
international treaty that we have on the books. The Montreal 
Convention will supersede Warsaw, and there's every reason to 
think that the countries that have subscribed to Warsaw will 
see good reason to ratify Montreal as well. Perhaps John Byerly 
would like to talk about what the State Department intends to 
do once we have a ratified treaty in the United States to 
ensure that our trading partners follow suit.
    The Chairman. That was my next question, will we be 
advocates for ratification and work with other countries to 
take that step?
    Mr. Byerly. Mr. Chairman, absolutely, and I give you our 
solemn pledge to that effect. I can give you my solemn pledge 
that that will be our effort. We will work in various ways. Our 
expectation is that upon U.S. ratification and entry into force 
of the treaty we would go out to all countries of the world 
through our embassies with what we call demarches in 
``diplospeak,'' and we would inform them that we have become a 
party, that the treaty is in force, and lay out the reasons, as 
we're trying to do today, why it is a good idea for the entire 
world.
    Second, we would work in our bilateral and multilateral 
aviation contacts to put this on the agenda of all our 
discussions, urging other countries that aren't yet parties to 
Montreal to become parties.
    And finally, we would support the efforts of the 
International Civil Aviation Organization, where this is a top 
priority under the leadership of Dr. Kotaite, the president of 
the ICAO Council, to support their efforts to ensure that 
adherence to the Montreal Convention is something that is 
universal. They've been very active on this front in the past 
with prior aviation treaties.
    Thank you.
    The Chairman. Yes, Mr. Shane.
    Mr. Shane. Mr. Chairman, I was just reminded by one of my 
colleagues that as soon as the United States ratifies, even if 
it ratifies all by itself, in the context of these 30 others, 
or if it's part of the 30, all international round trips that 
begin and end in the United States will immediately be covered 
by the provisions under the Montreal Convention.
    The Chairman. Thank you for that addition. I'm curious, I 
remember the negotiations surrounding Montreal, and as you 
pointed out, 1999 was sort of the year attached to this. What 
has happened in the last 4 years? Have there been continuous 
discussions or negotiations? I'm just simply curious. I'm 
delighted the treaty is coming before us in this year, 2003, 
but I'm curious as to why it has not come before us in earlier 
years.
    Mr. Byerly. Mr. Chairman, just as the Warsaw system is 
complex, there is a certain complexity in the evolution of the 
Montreal Convention. We submitted that convention to the Senate 
under the administration of President Clinton in September 
2000. However, it was not possible in that election year to 
schedule a hearing.
    Later in that year, or early in 2001, some litigation arose 
involving a cargo question in litigation called Chubb v. Asiana 
Airlines that raised some questions among carriers with respect 
to the Hague Protocol and whether the United States was or was 
not a party to that treaty in respect of certain other 
countries.
    After that was carefully considered, and it was a very 
complex case, we decided, in conjunction with all the parties--
the relevant private sector parties, the airlines, the victims 
groups--to submit or resubmit to the Senate for its advice and 
consent to ratification the 1955 Hague Protocol to provide 
stop-gap protection that Under Secretary Shane has outlined in 
his testimony to you this morning.
    Again, we had hoped in 2002 to have a hearing. That proved 
impossible that year. It's 2003, and we're before you. Time 
moves fast, and we hope that this year it will be possible, as 
you have outlined in your statement, to receive positive action 
on this before the summer break, if possible, and certainly 
this year. Thank you.
    The Chairman. Well, thank you for that candid explanation 
of all the things that have occurred. I think it is important 
in terms of public understanding that these treaties are 
difficult. They are complex, and the interests sometimes are 
not aligned.
    I would just say parenthetically that one of the emphases 
of our committee this year really is to work with each of the 
departments of our Government to find those treaties that for 
some reason are not slumbering, but are there on the shelf and 
have not had the light of day. I think it is important that 
these issues be brought to the fore, and we will take the time 
to do so. We're really appreciative of this opportunity this 
morning.
    Without going into a great deal of historical reverie, when 
I was last chairman of the committee in 1985 we had a similar 
cleansing process. We sort of went through all the archives to 
see what had been lying there for quite a while, and it was 
amazing the number of treaties that stumbled out and that had 
their day in court. So at least in that year, why, we 
progressed further, and perhaps this will be another remarkable 
year with regard to treaties. Certainly this one has enormous 
merit.
    Obviously, I am supportive, and I think that will be true 
of my colleagues. As I pointed out, we will attempt to have a 
business meeting of the committee prior to the recess for the 
Fourth of July. If we miss that, we will miss by just a week, 
and we will be back at it, but I anticipate activity very soon.
    There are no more questions because there are no more 
Senators to raise them. We appreciate both of you, your 
testimony, your complete statements, as well as your 
forthcoming responses and the work you're doing is obviously 
important. With that, why, you are dismissed to go on to other 
duties, and we will proceed to Mr. Turner and the five treaties 
under his jurisdiction.
    I thank you for coming.
    Mr. Shane. Thank you, Mr. Chairman.
    Mr. Byerly. Thank you very much, Mr. Chairman.

STATEMENT OF HON. JOHN F. TURNER, ASSISTANT SECRETARY OF STATE 
   FOR OCEANS AND INTERNATIONAL ENVIRONMENTAL AND SCIENTIFIC 
          AFFAIRS, DEPARTMENT OF STATE, WASHINGTON, DC

    Mr. Turner. Good morning, Mr. Chairman.
    The Chairman. Good morning, Mr. Turner.
    Mr. Turner. Well, I and my colleagues at the State 
Department certainly appreciate this opportunity to discuss 
five important international environmental treaties which we 
believe are important to environmental stewardship, are 
important to protecting public health and provide economic 
opportunities for American citizens and our neighbors.
    In looking at these five treaties, two on hazardous 
chemicals, two on fisheries, one on polar bears, I would just 
like in my remarks to briefly describe each treaty.
    The first, as you indicated, Mr. Chairman, is the Stockholm 
Convention on Persistent Organic Pollutants, also known as the 
POPs Convention. This proposal aims to protect human health and 
also the environment from the 12 chemicals that have been 
initially known as the dirty dozen that are of particular 
concern due to their characteristics. And as you are aware, 
these four characteristics are: first, they are extremely toxic 
to not only humans but to other living resources; second, they 
bio-accumulate, they magnify up the food chain especially in 
fatty tissues; third, they persist in the environment for a 
long time, they're extremely stable; and fourth, they are able 
to travel a long distance. So regardless of where these are 
released around the world, in fact they can come back, as we 
have noticed, and be deposited, especially in our temperate 
zone, where they are of concern to our Native Americans, who 
often live on subsistence means, taking living resources from 
the wild.
    The POPs Convention, of course, deals with chemicals that 
are already banned or severely restricted here in the United 
States. In support of the POPs Convention, President Bush 
appropriately said, ``the risks are great and the need for 
action is clear. We must work to eliminate or severely restrict 
the release of these toxins without delay.''
    Under the Convention, parties commit to take steps similar 
to those long practiced here in the United States to limit or 
significantly restrict their production and use. And there are, 
of course, exemptions for developing nations, especially on 
DDT, where they have no substitute to address malaria. The 
convention also intends that developed countries reach out to 
developing countries and help them meet their responsibilities 
in this chemical arena.
    The second treaty proposed, Mr. Chairman, is the Rotterdam 
Convention on the Prior Informed Consent, known as the PIC 
treaty. This is the first global treaty designed to protect 
human health and the environment from the risks of toxic 
chemicals. In fact, I believe the negotiations started back in 
the Reagan administration on a voluntary compliance mechanism. 
The Convention recognizes that the United States and other 
developed countries have the information, the resources, and 
the programs to deal with risky chemicals. This Convention has 
established a system of information sharing that promotes risk-
based decisions for chemical management by all countries around 
the world.
    The PIC convention simply stipulates that the export of 
certain especially hazardous substances can only take place 
with the prior informed consent of the importing countries. 
When and if exported, however, the chemicals must be labeled 
and accompanied by safety instructions explaining health risks 
and application procedures.
    Our third treaty is an amendment to a treaty with Canada on 
Pacific Coast albacore tuna. This treaty, which has been around 
for a long time, originally allowed mutual unlimited access by 
U.S. vessels into Canadian water and unlimited access of 
Canadian vessels into U.S. waters. In recent years, we've seen 
the fish stock, the albacore, drifting south, where now the 
fishing is done mostly in U.S. waters. For this reason, we've 
seen more and more Canadian vessels fishing in our waters, 
causing burdens to U.S. fishing interests.
    This agreement before you limits cross-border fishing and 
proposes a 3-year regime reducing Canadian entry into our 
waters each year until the third year, where their levels will 
be about at the 1998 average levels. It's a measure which we 
feel is necessary to protect U.S. fishermen and the fish stock.
    Our fourth treaty before you is an amendment to the 1987 
treaty on U.S. access to the tuna-rich fishing grounds of the 
South Pacific Island states. Under this proposal, we simply ask 
for a 10-year extension which would allow U.S. vessels into 
these waters. These tuna supplies are the life blood of the 
economy of the American Samoa economic interests.
    In addition, the amendments will allow U.S. longliners to 
fish in the pockets of the high seas in this South Pacific 
area. It will also allow parties to consider fishing capacity 
in the future. It will require data sharing and will ensure 
consistency with any future multilateral fish agreements which 
might come into play, especially the Western and Central 
Pacific Fisheries Convention.
    Our last treaty, finally, is an agreement with Russia on 
the Chukotka polar bear population in the Chukchi Sea. We feel 
this is a very vulnerable population; it lives in the semipolar 
region; and there are recent concerns about a higher harvest 
level, especially on the Russian side, than this population can 
sustain in the future. The treaty would provide a legal and 
scientific and administrative framework for managing and 
conserving polar bear populations shared by the United States 
and Russia. It would coordinate a new regime of harvest 
restrictions in cooperation with our Native Alaskans. It 
culminates from discussions that I recall we started with 
Russia back in the first Bush administration.
    Mr. Chairman, in summary, I believe these proposed treaties 
reflect well on our diplomatic efforts and U.S. leadership. It 
reflects years and sometimes decades of hard work. These 
treaties embody concepts that we cherish and embrace. They help 
protect the health and economic well-being of the American 
people, as well as strengthen our stewardship of living 
resources out and around the world.
    Our implementation will encourage other nations to take 
similar action. We look forward to the Senate's early advice 
and consent on these proposals. Again, thank you, Mr. Chairman, 
and I look forward to trying to answer any of your questions.
    [The prepared statement of Mr. Turner follows:]

Prepared Statement of Hon. John F. Turner, Assistant Secretary of State 
  for Oceans and International Environmental and Scientific Affairs, 
                          Department of State

                              introduction
    Thank you for the opportunity to appear before this Committee today 
to discuss five important international agreements--the Stockholm 
Convention on Persistent Organic Pollutants, with annexes, done at 
Stockholm May 22-23, 2001 (``POPs''); the Rotterdam Convention on the 
Prior Informed Consent Procedure for Certain Hazardous Chemicals and 
Pesticides in International Trade, with annexes, done at Rotterdam 
September 18, 1998 (``PIC''); the Agreement Amending the Treaty Between 
the Government of the United States of America and the Government of 
Canada on Pacific Coast Albacore Tuna Vessels and Port Privileges, 
effected by exchange of notes July 17 and August 13, 2002 (``Albacore 
Tuna Treaty''); Amendments to the 1987 Treaty on Fisheries between the 
Governments of Certain Pacific Island States and the Government of the 
United States of America, done at Koror March 30, 1999 and Kiritimati 
March 24, 2002 (``South Pacific Tuna Access Agreement''); and the 
Agreement Between the Government of the United States of America and 
the Government of the Russian Federation on the Conservation and 
Management of the Alaska-Chukotka Polar Bear Population, done at 
Washington October 16, 2000 (``Polar Bear Treaty'').
    These agreements directly affect the health and economic well-being 
of the American people. They embody concepts and ideas that we cherish, 
such as creating economic opportunities and preserving our ecosystems. 
Hazardous chemicals, like POPs, respect no boundaries and can harm 
Americans even when released abroad. They are of particular concern 
because of their impacts on human health and the environment in places 
such as Alaska and in the Great Lakes Region. Indigenous people in 
Alaska and elsewhere in the United States are particularly at risk due 
to their reliance on a subsistence diet. Meanwhile, in the fish 
industry, changes are needed to permit more effective control over 
fishing for albacore in U.S. and Canadian waters. In American Samoa, 
tuna provided by U.S. fishing vessels supplies tuna canneries that 
serve as the lifeblood of the economy in this region. If these jobs 
disappear, political and economic instability would result. Much 
further North, we find the beauty and majesty of a living marine 
resource--the polar bear--the population of which could be depleted in 
the absence of adequate safeguards.
    U.S. negotiation of these agreements sought to address these and 
other issues of direct benefit to Americans. They uphold our notion of 
U.S. sovereignty, ensuring that the voice of the United States is heard 
in appropriate cases, through measures such as consensus-decision 
making or the ability to decide whether to opt in to significant new 
legal commitments. Additional legislative authority will, however, be 
needed to implement certain of our obligations under these agreements.
      stockholm convention on persistent organic pollutants (pops)
    The Stockholm Convention on Persistent Organic Pollutants, or the 
POPs Convention, aims to protect human health and the environment from 
twelve chemicals that are of particular concern because they have four 
intrinsic characteristics. First, they are toxic and known to have 
deleterious health or environmental impacts. Second, they have the 
potential to bioaccumulate, meaning that they work their way through 
the food chain by accumulating in the fat of living organisms and 
become more concentrated as they move from one creature to another. 
Third, they are stable and thus resistant to natural breakdown. Fourth, 
they can be transported over long distances.
    The twelve POPs chemicals, known as the ``dirty dozen'' covered by 
the POPs Convention are: aldrin, hexachlorobenzene, chlordane, mirex, 
DDT, toxaphene, Dieldrin, polychlorinated biphenyls (PCBs), endrin, 
polychlorinated dibenzo-p-dioxins (dioxins), heptachlor, and 
Polychlorinated dibenzo furans (furans). Each of these chemicals has 
been linked through solid scientific information to adverse human 
health effects, including cancer, damage to the nervous system, 
reproductive disorders, and disruption of the immune system. Many of 
these chemicals are also known to cause deleterious environmental 
effects, including egg shell thinning and other effects. All twelve of 
these chemicals are already banned or tightly controlled in the United 
States.
    Nevertheless, U.S. action alone is not enough. These chemicals are 
still in use, or are being released, in many places abroad, 
particularly in developing countries. The reality is that POPs are 
capable of impacting human health and the environment far away from 
where they are released; they respect no national boundaries. POPs 
released in East Asia or Northern Europe have been shown to travel all 
the way to Alaska. As a result, POPs can have impacts all over the 
United States, and have been of particular concern in Alaska and in the 
Great Lakes Region. Thus, as President Bush remarked in announcing U.S. 
plans to sign the POPs Convention, ``[t]he risks are great and the need 
for action is clear. We must work to eliminate, or severely restrict 
the release of these toxins without delay.''
    Under the POPs Convention, parties commit to taking steps similar 
to those already taken by the United States to eliminate or restrict 
the production, use, and/or release of the twelve POPs. The Convention 
will also restrict trade in intentionally produced POPs and includes 
obligations with respect to the treatment of POPs stockpiles and 
wastes. All of these control measures were carefully negotiated, 
keeping in mind the impact they could have in light of existing uses of 
these chemicals. As a result, the Convention allows certain exemptions 
to its control measures where they were deemed necessary, such as the 
need for DDT, for example, to fight malaria in Africa, in line with 
World Health Organization guidelines until locally safe, effective and 
affordable alternatives are available.
    The Convention also recognizes the situation of less-developed 
nations, which have fewer resources to phase out their use of these 
chemicals of global concern. In order to lend them a hand in addressing 
this threat, the Convention includes a flexible system of financial and 
technical assistance by which developed countries will help developing 
countries meet their obligations under the POPs Convention. The Global 
Environment Facility has already initiated action to provide financial 
assistance to developing countries to help them implement the 
Convention.
    Finally, the POPs Convention creates a science-based procedure that 
will govern the inclusion of additional chemicals to the Convention, 
and defines the criteria that must be met by proposed chemicals. These 
criteria insure inclusion of substances that are toxic, that 
bioaccumulate, that are resistant to natural breakdown and that can be 
transported over long distances. In accordance with Article 8, 
paragraph 7(a) of the Convention, this science-based procedure will 
involve an evaluation of whether ``the chemical is likely as a result 
of its long-range environmental transport to lead to significant 
adverse human health and/or environmental effects such that global 
action is warranted . . .'' Inclusion of such science based procedures 
and criteria in the Convention make it an important vehicle in 
protecting human health and the environment in the United States from 
the harmful impacts of these POPs chemicals wherever they may be used 
in the world. It is particularly important that the United States 
ratify the Convention so that we are at the table when it enters into 
force and issues of importance to the United States are decided.
   rotterdam convention on the prior informed consent procedure for 
   certain hazardous chemicals and pesticides in international trade
    The Rotterdam Convention on Prior Informed Consent (PIC), which was 
concluded in 1998 under the auspices of the UN Environment Program and 
the UN Food and Agriculture Organization, was the first international 
agreement designed to protect human health and the environment from the 
risks posed by trade in toxic chemicals. The Convention recognizes 
that, while the United States and other developed countries have strong 
systems in place to deal with risks presented by imported chemicals, 
many countries lack the resources and capability needed to assess and 
control such risks. In order to address this issue, the Convention 
establishes a system of information sharing and technical assistance 
that promotes sound, risk-based decision making for chemicals 
management in all countries.
    The Convention stipulates that export of certain especially 
hazardous chemicals that have been banned or severely restricted in 
some parts of the world can only take place with the prior informed 
consent (PIC) of the importing country. Prior informed consent is 
enabled by the creation of an internationally recognized summary of the 
chemical's risks and basis for control measures (known as Decision 
Guidance Documents). When exported, these chemicals must be labeled and 
accompanied by safety data sheets that explain their potential health 
and environmental effects. Importing countries are also required to 
inform the other Parties in a timely manner of any controls they would 
be placing on the import of PIC listed chemicals. In addition, 
countries must also ensure that any such controls they place on imports 
also apply to domestically produced PIC chemicals. Thus, the agreement 
enhances the safe management of chemicals by enabling countries, 
especially developing countries, to identify risks and make informed 
decisions about the importation and use of highly dangerous chemicals.
    The Rotterdam Convention builds upon an existing voluntary PIC 
procedure that is already being implemented by the United States, with 
participation from major U.S. chemical manufacturers, and 150 other 
countries. The treaty signatories agreed to continue to implement the 
procedure on an interim basis until it comes into force. Thus, during 
this interim period, 5 additional pesticides have been added to the 
list of 27 chemicals developed during the voluntary PIC procedure; 
participants have agreed to exchange information and respect import 
decisions even before the Rotterdam Convention enters into force. These 
interim decisions must be approved by the first Conference of Parties 
(COP), but it is expected that the Rotterdam Convention will cover 
these same chemicals and provide for the addition of new chemicals to 
this list through a science-based process and on the basis of consensus 
among the Parties.
    It is important to note that, in the case of both the POPs and PIC 
Conventions, a significant number of countries have already deposited 
their instruments of ratification and both Conventions are expected to 
enter into force in the relatively near future. Upon entry into force, 
Conferences of the Parties (COP) will be established and begin making 
critically important policy decisions on the implementation and future 
evolution of these treaties. For example, decisions on the rules of 
procedure, financial rules, noncompliance procedures, and consideration 
of new chemicals could all take place soon after these two treaties 
enter into force. If the United States is not a Party to these 
agreements by the time their respective COPs meet, we will not be in a 
position to influence major policy decisions that could directly affect 
U.S. interests. As a result, the Administration is seeking Senate 
advice and consent to these treaties at the earliest possible date. The 
Administration is separately working with the appropriate congressional 
committees to craft the necessary implementing legislation for these 
two treaties that we will need enacted before the United States may 
become a party to them.
 amendments to agreement with canada concerning pacific coast albacore 
                    tuna vessels and port privileges
    The 1981 U.S.-Canada Albacore Treaty permits unlimited fishing for 
Pacific albacore tuna by vessels of each Party in waters under the 
jurisdiction of the other Party. Since the entry into force of the 
Treaty, most of the tuna appear to have shifted their migratory 
patterns in a southerly direction. As a result, U.S. fishermen have 
fished significantly in Canadian waters only in approximately three out 
of the last twenty years, while Canadian fishermen have continued to 
fish regularly in U.S. waters.
    The imbalance in benefits flowing from the treaty has become 
particularly acute in recent years. Since 1998, Canada has more than 
doubled its albacore tuna fishery in U.S. waters, from its historical 
average of less than 100 vessels to 200 or more vessels per year. The 
U.S. albacore fishing industry began in 2000 to complain to the 
Administration of overcrowding on U.S. fishing grounds and the 
disproportionate benefits received by Canadian fishers under the 
Treaty.
    The United States entered into negotiations with Canada with a goal 
to reduce Canadian fishing effort in U.S. waters to tolerable and more 
equitable levels and to create a fishery limitation mechanism for both 
Parties that could respond to future needs to conserve and manage the 
stock. The negotiations culminated in an Agreement to amend Article 
1(b) of the Treaty to allow for a mutually agreed limitation on the 
previously unlimited albacore fishery by vessels of each Party in each 
others' waters. The Administration seeks the advice and consent of the 
Senate to this amendment.
    The United States and Canada also agreed to an initial three-year 
reciprocal fisheries limitation regime that reduces the permitted 
fishing effort each year until a level is reached in the third year 
that is slightly above the pre-1998 average level of fishing. This 
related agreement to amend the Annexes to the Treaty sets out the 
initial regime in a new Annex C as well as making a few minor technical 
changes to Annex A. The related agreement has been concluded, pursuant 
to Article VII of the Treaty, by executive agreement, but will not 
enter into force until the Amendment to the Treaty enters into force. 
Prior to entry into force of the treaty amendments, implementing 
legislation will also be necessary. The Senate passed such legislation 
at the close of 2002, but the House adjourned before taking action. The 
Administration hopes that the legislation will be reintroduced and 
enacted soon.
   amendments to 1987 treaty on fisheries with pacific island states
    Since 1987, the Treaty on Fisheries between the Governments of 
Certain Pacific Island States and the Government of the United States 
of America has contributed substantially to U.S. foreign policy in the 
Pacific region, as well as to our commercial and security interests in 
the region. Under the Treaty, U.S. vessels have enjoyed access to fish 
in the rich tuna fishing grounds in waters under the jurisdiction of 
the Pacific Island Parties.
    The original regime of the Treaty lasted for five years. In 1993, 
the Parties extended it for an additional ten years. Now, they have 
agreed to extend the regime for ten more years, until 2013. In doing 
so, the Parties have also negotiated several relatively minor 
amendments to the original Treaty, as described in the Report of the 
Secretary of State to the Senate, and for which the Administration 
seeks the advice and consent of the Senate. The extension of the regime 
also entails a series of amendments to the technical annexes to the 
Treaty, a new related economic assistance agreement and a memorandum of 
understanding on provisional application. These amendments to the 
annexes and the memorandum of understanding were previously transmitted 
by the Administration earlier this year as part of our treaty package.
    The Amendments to the Treaty will, among other things: (1) allow 
U.S. longline vessels to fish in high seas portions of the Treaty Area; 
(2) streamline the way future amendments to the Treaty Annexes enter 
into force; (3) allow the Parties to consider the issue of fishing 
capacity in the Treaty Area; and (4) promote consistency between the 
Treaty and an emerging multilateral fisheries management convention, 
which is likely to come into force in the next few years.
    Existing legislation, including the Magnuson-Stevens Fishery 
Conservation and Management Act and the South Pacific Tuna Act of 1988, 
provides sufficient legal authority to implement continuing U.S. 
obligations under the Treaty. Thus, no new legislation is necessary in 
order for the United States to ratify these Amendments. However, a 
minor amendment to Section 6 of the South Pacific Tuna Act will be 
necessary to allow U.S. longline vessels to take advantage of the 
opportunity afforded by the amendment to the Treaty that opens the high 
seas of the Treaty Area to fishing by U.S. longline vessels.
agreement with russian federation on the conservation and management of 
               the alaska-chukotka polar bear population
    Polar bears are a potentially threatened species that live in the 
circumpolar North and are unique to five countries: the United States, 
Russia, Canada, Norway, and Denmark's Greenland. They are an important 
part of a sensitive ecosystem, and know no national boundaries. Polar 
bears also continue to be essential to the survival of Native Alaskan 
people as a renewable subsistence resource upon which they have 
depended for centuries.
    The United States has long recognized our common interest in the 
responsible management of shared polar bear resources. Since 1976, we 
have been party to the 1973 Agreement on the Conservation of Polar 
Bears, along with the other four states where polar bears are found. 
The 1973 Agreement did several things. First, it generally prohibited 
the hunting, killing or capturing of polar bears. Second, it created 
several exceptions to this prohibition, including one for local people 
using traditional methods in the exercise of traditional rights, in 
accordance with applicable laws. Third, it required the parties to 
coordinate and consult on research, management of the species, and the 
exchange of information. Fourth, the 1973 Agreement explicitly allows 
Parties to adopt more stringent controls than those required under the 
Agreement itself.
    The Polar Bear Treaty signed by the United States and Russia in 
2000 would provide legal protections for the Alaska-Chukotka polar bear 
population beyond those found in the 1973 Agreement. It would establish 
a common legal, scientific, and administrative framework for conserving 
and managing the polar bear population shared by the United States and 
Russia. This framework is needed because of concerns over the widely 
different polar bear harvest provisions and practices of the United 
States and Russia. As I just mentioned, the 1973 Agreement allows local 
people to take an unlimited number of polar bears for subsistence 
purposes. Our own law, the Marine Mammal Protection Act (MMPA) 
similarly authorizes Alaska Natives to take polar bears for subsistence 
purposes so long as it is done in a non-wasteful manner. However, 
despite Russia's general prohibition on hunting polar bears, harvest of 
this population is now occurring at levels that, when combined with the 
Alaskan legal subsistence harvest, could deplete the population. The 
MMPA, however, does not authorize limitations on Alaskan subsistence 
harvests until after the population is found to be depleted. The 
negotiated agreement would coordinate harvest restrictions to prevent 
such an unsustainable combined harvest by both Native people.
    Discussions between the United States and Russia on a bilateral 
treaty to conserve our shared Alaska-Chukotka polar bear population 
began in 1992. The State Department and the Department of the Interior 
(Fish & Wildlife Service) jointly led subsequent negotiations. Alaska 
and Chukotka Natives and other public and private stakeholders also 
participated in these negotiations.
    The Polar Bear Treaty with Russia continues to recognize 
subsistence use of polar bears from the Alaska-Chukotka region by 
Native people. At the same time, however, it includes a definition of 
sustainable harvest level, reflecting a clear obligation to conserve 
the population while safeguarding the interests of the Native people. 
It would also establish a joint management mechanism by creating a 
U.S.-Russia Polar Bear Commission that would, by consensus, establish 
quotas to ensure that subsistence take of polar bears on both sides is 
consistent with maintaining that population at sustainable levels. The 
Treaty includes provisions to ensure representation of the interests of 
the Native people of Alaska and Chukotka and equitable allocation of 
take between them. Finally, the joint research and population 
assessment mechanisms foreseen in the Treaty would constitute an 
ongoing means for assessing the environmental impact of removals from 
the population.
    The Administration seeks prompt Senate action on this Treaty as it 
would establish a common legal, scientific and administrative framework 
for the conservation and management of the Alaska-Chukotka polar bear 
population, promote responsible management of the Alaska-Chukotka polar 
bear population at sustainable levels, preserve the interests of the 
Alaskan Native people, and enhance our collaborative efforts with 
Russia to conserve a treasured natural living resource.
                               conclusion
    Protecting our health, fostering international trade and serving as 
stewards of our resources are integral parts of U.S. foreign policy. 
U.S. ratification of these agreements will reinforce our leadership 
role in negotiating treaties that save lives; promote economic 
stability; and protect natural resources. Our implementation will 
encourage similar action by other nations.

    The Chairman. Thank you very much, Mr. Turner. The first 
two treaties, the Convention on Persistent Organic Pollutants 
and the Rotterdam Convention on Prior Informed Consent would 
appear to be treaties that cover 150 countries or the world. Is 
that correct, and if so, how many parties have ratified either 
of these two documents at this point?
    Mr. Turner. Mr. Chairman, taking the POPs convention, the 
first one, 151 countries originally signed that. We need 50 
countries to have it come into force. To this date, it's my 
understanding 33 have ratified.
    With the PIC convention, there were 73 nations that 
originally signed that, 50 again are needed for it to come into 
force, 43 have ratified it.
    The Chairman. Is there a probability that the United 
States' ratification would accelerate the numbers coming in? 
This is analogous to the question we raised on the aviation 
treaties. Will our leadership in this respect, or our advocacy, 
be likely to bring about the 50 or the required number in each 
case?
    Mr. Turner. Mr. Chairman, it's my feeling that both these 
treaties are in the state they are in because of the United 
States' leadership. We are recognized as the world leader in 
not only chemical production but our science, our risk 
analysis, our cost and benefits of regulation are the best. So 
the United States taking responsibility in providing leadership 
on this would definitely be an excellent signal to other 
nations that this is coming online, and it is important. I 
think, that the United States should be on deck early as they 
develop the procedures for the conventions, the guidelines, and 
the criteria. Our expertise simply needs to be a part of this 
process.
    The Chairman. Now, as a part of that leadership, how would 
the United States implement the conventions' financial and 
technical assistance provisions? Do you believe that, in fact, 
we would be able to offer assistance to countries under those 
provisions? Specifically, for example, in substitution of 
chemicals or assistance, can we ensure that we do not get into 
the difficulties of having toxic chemicals crossing borders?
    Mr. Turner. Well, Mr. Chairman, I think the United States 
and other developed countries definitely have an obligation to 
share and help, especially developing countries that don't have 
the experience, expertise or resources we have. I think the 
United States will be the primary leader that developing 
countries will look to for technical assistance for substitute 
chemicals and applications.
    On the financial side, the United States feels that its 
contribution has been and will continue to be through the 
Global Environmental Fund. In fact, I believe using rough 
numbers, the generous contributions that we make and that 
Congress authorizes, about $250 million will go to chemical 
capacity-building in developing countries from 2002-2006 and, 
of course, we have pledged to pay roughly 22 percent of that.
    The Chairman. The environmental treaty that we're 
discussing provides for a review committee which assesses 
whether a chemical is likely to have long-range environmental 
impact. I just query whether we're likely to be a member of 
that review committee. I presume so, but can you give any 
thought about that?
    Mr. Turner. We fully expect, Mr. Chairman, to be members of 
the scientific and review committee for both the POPs 
convention and the PIC convention. There's just no substitute 
for U.S. leadership and know-how and capacity in both these 
conventions.
    The Chairman. So in summary, with these two conventions the 
United States has provided leadership which has probably 
brought these two documents to the status that they now have. 
Our intent through our State Department would be to offer 
technical guidance about chemicals from our own experience to 
assist other nations to avoid mishaps, whenever possible to 
make substitutes, but to have some understanding of the 
implications that we can at least testify to from our own 
experience. Therefore there is a pro feeling both in trying to 
formulate the agreements as well as in attempting to make them 
work, and with as few miscues and international difficulties as 
possible.
    Mr. Turner. Well, as I mentioned, the opportunity for U.S. 
leadership is just superb. There are several areas that I 
personally feel we lead the world in environmental stewardship, 
and one is our ability to do good research and to handle 
properly toxic chemicals. It's in our best interests, it's in 
the best interests of our relationships out around the world, 
and I look forward to working these issues with the expertise 
at EPA and Health and Social Services and State regulatory 
agencies. We just have great capacity, and we can share that 
with our neighbors out around the world.
    The Chairman. Now, in the case of the Pacific Island 
Fisheries Agreement, how many signatories are there to that?
    Mr. Turner. Mr. Chairman, it is the United States' 
agreement with 16 island states, and so there will be a total 
of 17 parties to that convention.
    The Chairman. Now, is there any threshold for that to come 
into force?
    Mr. Turner. It would have to be agreed to by all 17 
countries.
    The Chairman. Of course, the last two agreements, the U.S.-
Canada Albacore Tuna Agreement and the U.S.-Russia Polar Bear 
Agreement are bilateral agreements with Canada and Russia.
    Mr. Turner. Those would come into force upon the acceptance 
of the agreement by both nations in both cases.
    The Chairman. Now, in the case of the two agreements, the 
Pacific Island Fisheries Agreement and the United States-Canada 
Albacore Tuna Agreement, you've described the provisions of 
those treaties. They are sound, at least in my judgment. I am 
curious as to how far-reaching our thinking is. Presently I've 
been persuaded that the new Pew Foundation study that deals 
with the reserves has great importance, and you've touched upon 
this a bit. However, after we've restricted the lines for 
Canada or the United States or for whoever, what is occurring, 
at least as I understand it from the limited study, is that a 
number of waters not only in the Pacific but around the world 
are being fished out. Fish are simply disappearing--certain 
fish that fishermen are looking for--so again you're looking 
for something else at that point.
    Obviously, these treaties help in that respect by noting 
the overfishing and trying to hold it down to a dull roar. At 
the same time, in terms of a more profound situation in which 
the countries agree that there are just certain waters we ought 
not to be fishing at all for a while--whether it be the tuna or 
the cod or whatever--they might grow again. I'm simply curious 
as to whether in these negotiations or discussions any of that 
sort of thinking has intruded. Surely among professional 
people, either as companies or individual countries looking at 
their interests, they perceive that the stock is going down, 
that there is a potential crisis at least with regard to our 
oceans and fish.
    Mr. Turner. Well, Mr. Chairman, I welcome that question, 
and it is my hope that this will be a year where all of us here 
in the United States and out around the world focus on the 
status of our marine resources, and especially fisheries. 
Certainly the Pew Commission has contributed to that, as have 
recent articles in Nature Magazine and elsewhere, and then we 
all look forward to the congressionally authorized Oceans 
Policy Commission headed up by Admiral Watkins, which we expect 
to come out later in the fall.
    There is no question that the status of a lot of our major 
fish stocks are in trouble. We estimate that about 70 percent 
are either fully exploited or they're overexploited or depleted 
and in tough shape. What the United States is doing has been to 
lead, I believe, in trying to get management regimes out 
covering the whole globe, and in fact we're about there, we're 
just about there. Of course, then the real test will be 
implementing those management regimes. We have to address the 
issue of overcapacity. There are too many vessels out there 
with new techniques, fishing techniques that are just too 
lethal. We also have to address the issue of subsidies, and we 
are doing that at to the WTO, at the FAO.
    We're looking at codes of conduct and compliance on the 
high seas. We ratified a new international fish stocks 
agreement, and so we're bringing some other instruments into 
force. If we can get the willpower and the enforcement and the 
monitoring technique. Certainly it is my hope this year we will 
all look for new approaches as a world community of what kind 
of stewardship we're giving our oceans and marine resources.
    The Chairman. Well, I'm pleased you've given that statement 
of advocacy. Obviously you have some willing listeners here, 
with the Senator from Maryland as a champion in this area. I've 
learned a great deal from my colleagues in recent times about 
the urgency here.
    I just have one further question and then I will yield to 
my distinguished colleague. On the polar bear conservation 
treaty, what estimates do you make of the polar bear population 
presently that you're attempting to conserve in this case?
    Mr. Turner. Mr. Chairman, we need better information on 
that population, but it's somewhere hovering below or above 
3,000 animals, and the United States' harvest was too high back 
in the fifties and sixties, when we had recreational hunting. 
You all addressed that in the Marine Mammal Protection Act, so 
we're down to subsistence hunting, which we think is 
sustainable, but with the lack of centralized control on the 
Russian side and an increase in the black market with bear 
parts we feel that the number of bears being taken in the 
primary denning area over on the Russian side has just gotten 
excessive, so Russia feels that this cooperative agreement will 
give them a better handle, and we together, in cooperation with 
our subsistence Native interests on both sides of the sea that 
we can do a much better job in managing this population.
    The Chairman. Obviously, we would not have reached this 
point without some Russian enthusiasm for the process. That is 
important, because I suppose that has been a problem over the 
years. The coming together of the two nations on these issues 
has been a tedious process.
    Mr. Turner. The cooperation on polar bears has always 
struck me as an interesting one between Russia and U.S. 
relationships. We were working positively together during the 
height of the cold war on polar bears, so this type of goodwill 
and intent, whatever we can do together, it would be good for 
polar bears and good for both countries.
    The Chairman. I thank you, and I recognize the 
distinguished Senator from Maryland, Senator Sarbanes.
    Senator Sarbanes. Thank you very much, Mr. Chairman, and 
Assistant Secretary Turner, we're very pleased to welcome you. 
First of all, I want to say, Mr. Chairman, I'm glad we're 
moving along with these treaties. They've only recently been 
concluded, but I think it is important for us to act 
expeditiously and I know you're planning, I think, before the 
summer is out, to bring these treaties to the Senate for 
ratification.
    The Chairman. As soon as we can.
    Senator Sarbanes. And we're having so much difficulty in 
the international community because of some very high profile 
environmental treaties we're not participating in that I think 
it obviously behooves us, when the opportunity comes along and 
we have reached agreements, to try to seek to put them into 
place as promptly as we can, although those larger issues, of 
course, continue to hang over us, and presumably, Secretary 
Turner, they put you in a difficult posture on occasions in the 
international scene.
    Let me followup on just the polar bear. I'm looking at a 
Fish & Wildlife Service report on the Chukchi Sea polar bears. 
It says, ``increased harvest of polar bears in Chukotka, Russia 
raises significant concerns about the status of the Chukchi Sea 
population. With intrinsically low reproductive rates, polar 
bears are vulnerable to long-term effects from overharvest. 
Current harvest rates are similar to or potentially greater 
than levels that resulted in significant population declines in 
the 1960s.'' And later in this report the Fish & Wildlife 
Service says, ``while the magnitude of Russian harvests from 
the Chukchi Sea population is not quantified, persistent 
reports of high harvests from local exports and hunters are of 
serious concern. Harvest estimates vary by year, and some 
estimates place this harvest as high as 200 to 400 bears per 
year. Notably large numbers of polar bear hides are listed for 
sale in Russia over the Internet.''
    First of all, is that accurate, and second of all, would 
this treaty bring that under control?
    Mr. Turner. Senator, I think the treaty will bring together 
a commission which will get better information. They will start 
to agree on a coordinated take level. We will be able to help 
the Russians with surveillance. It's my understanding that we 
will prohibit the taking of sows with young cubs, which would 
be most appropriate, and also prohibit the taking of bears 
coming and going from their dens. Their primary denning will be 
outside the United States, so it is certainly our hope that 
working together we can reduce the harvest and the monitoring 
on the Russian side, because indeed that is the area of major 
concern.
    Senator Sarbanes. Is this harvesting going on contrary to 
the desires of the Russian authorities, or is it going on with 
their tacit or maybe even more support?
    Mr. Turner. Senator, I might have to clarify my response, 
but I believe Russia has banned the taking of bears for many 
years, except for subsistence takes, so this harvest currently 
is not a legal harvest on the Russian side.
    Senator Sarbanes. Now, I wanted to ask about the Persistent 
Organic Pollutants Treaty. As I understand it, under that 
treaty, the technical and financial assistance to less 
developed countries will be through the World Bank's Global 
Environment Fund, is that correct?
    Mr. Turner. The technical assistance can go on bilaterally, 
multilaterally with the United States and through the 
convention, but it is correct the primary funding mechanism 
would be the Global Environmental Fund, known as the GEF.
    Senator Sarbanes. Now, we're in significant arrears to the 
GEF, aren't we? I understand we're in arrears to the tune of 
more than $200 million, is that correct?
    Mr. Turner. It is the view of the GEF that the United 
States has been in arrears. President Bush has proposed a $70 
million increase in our payments, so that the United States 
unilaterally took leadership on upping their donation to the 
GEF to help developing countries. Other countries have followed 
suit, but with those projected fundings I believe I'm correct 
in saying we'll be in good standing on our commitments to the 
GEF, but I will check that, Senator.
    Senator Sarbanes. Well, was the additional commitment the 
President made to increase our continuing share, or to 
eliminate the arrearages that had built up?
    Mr. Turner. I'm reading my notes here, Senator. In fiscal 
year 2004, the administration's request for the GEF totaled 
$185 million, $107 million of that was for the second 
installment of the U.S. pledge of $500 million to the GEF's 
third replenishment and $75 million to clear a portion of the 
arrears, and I might note that in fiscal 2003, Congress 
appropriated a total of $148 million for the GEF. This amount 
is less than the administration's 2003 request of $178 million 
for the GEF.
    Senator Sarbanes. How much are our arrearages? You said the 
administration requested, was it $75 million for the 
arrearages?
    Mr. Turner. We had $77 million to clear a portion of the 
arrears.
    Senator Sarbanes. Portion. What was the total amount of the 
arrearages?
    Mr. Turner. I will have to get back to you, Senator. I 
cannot recall that.
    [The following information was subsequently supplied:]

    With the payment of $40.3 million in FY 2003 funds toward previous 
contributions due, the U.S. will owe $171.6 million in previous 
contributions owed toward the GEF's second replenishment.

    Senator Sarbanes. Mr. Chairman, thank you. Thank you very 
much.
    The Chairman. Thank you very much, Senator Sarbanes.
    Mr. Turner, we thank you for your testimony, and we know 
that you will respond to Senator Sarbanes' question. I think 
there are no other overhanging questions, but to complete the 
record we would like to have those answers promptly. Likewise, 
as I stated at the outset, statements or opinions from any 
interested party on any of the seven treaties we have discussed 
today by the end of business this week, would be much 
appreciated. It would be our hope to have a business meeting in 
which these treaties could be on the agenda soon, as I have 
indicated, and place them before the Senate as a whole.
    We thank you for bringing along an able staff and we look 
forward to working with you and your colleagues in the 
Department.
    Mr. Turner. Mr. Chairman, our hearty thanks for your 
considering these five treaties. Thank you.
    The Chairman. The hearing is adjourned.
    [Whereupon, at 10:30 a.m., the committee adjourned, to 
reconvene subject to the call of the Chair.]
                              ----------                              


             Additional Statements Submitted for the Record


Prepared Statement of Air Crash Victims Families Group, Spokesman Hans 
                               Ephraimson

    Mr. Chairman, Members of the Committee:
    My name is Hans Ephraimson and I appear before you as the Spokesman 
of the Air Crash Victims Families Group, as well as in my own capacity.
    The Air Crash Victims Families Group is an informal umbrella 
organization for the individual bereaved families associations of 
KAL007, TWA800, Swissair 111, Egyptair 990, AF4590 (Concorde), 
Birgenair and individual survivors of air crashes, as well as surviving 
families.
    Although I am privileged to appear before you as the Spokesman of 
our Group, besides me stand: A. Frank Carven III who lost his sister 
and nephew in TWA800, Miles Gerety who lost his brother Pierce with 
Swissair 111, a much beloved assistant of UN Secretary General for 
Refugee Affairs, James Brokaw, Paige Stockley and Christoph Kappus who 
lost their parents with Egyptair 990, AF4590 (Concorde) and Alaska Air 
respectively, Heike Bethke-Weisner who lost her brother with Birgenair 
and her husband Claus Weisner, Stephen Push who lost his wife with 
American Airlines flight 77 (Pentagon) on September 11, 2001, Victoria 
Cummock whose husband perished with PAA 103 (Lockerbie) and the many 
others too numerous to mention, all of them leaders in their families 
groups--all of them dedicated that through their shared and sad 
experiences we can together contribute to the improvement of the after 
crash crisis management system, air safety and security.
    My oldest daughter Alice Ephraimson was a passenger on Korean 
Airlines Flight 007, which strayed 585 miles into Soviet airspace for 
over a period of five hours. The flight was tracked by a Soviet fighter 
plane, ultimately attacked, and disabled. After a twelve minute 
controlled descent Flight KAL007 ultimately crashed into the 
territorial waters off the coast of Sakhalin Island on September 1, 
1983 with the loss of 269 passengers and crew. None of our loved ones 
has ever been returned to us, we are still looking for them.
    Alice was 23 years old. She had just graduated from Wittenberg 
University in Springfield, OH. During her undergraduate years she had 
studied at Exeter University in England, at Fudan University in 
Shanghai, China, at the University of Taipei, Taiwan and at the 
Eberhard Karls University in Tuebingen, Germany. She was conversant in 
four languages. On September 1, 1983 she was on her way to Beijing, 
China to teach English at the Peoples University and continue East 
Asian graduate studies.
    The immediate interests of the surviving families in sixteen 
countries was to cope with their grief, to learn how this tragedy could 
have happened, to address their immediate needs and to find each other. 
Instead we were immediately besieged by the media and solicited by 
eager legal advisors who embarrassed us greatly by filing damages 
actions in unrealistic amounts, none of which were ever obtained.
    We also received an introduction into what was called ``The Warsaw 
Convention'' which would be with us for seventeen years.
    Since our tragedy occurred outside of the United States we also 
discovered the limitations and the impediments that faced our legal 
advisers in accessing witnesses and conducting discoveries.
    Faced with all of those issues three family groups were organized 
in the United States, Japan and Korea--first and foremost to take care 
of the families needs, then to assist our attorneys to obtain needed 
documentation.
    It took the KAL007 families six years before the stage of a 
``Wilful Misconduct'' trial was reached. By that time it became quite 
clear that there was something fundamentally wrong with ``Warsaw''.
    In 1989 in a trial at the United States District Court in 
Washington, DC, a jury found that the ``Wilful Misconduct'' of Korean 
Airlines was the ``probable cause'' of our tragedy. The Warsaw cap was 
broken. However instead of proceeding to settlements, Korean Airlines 
with great persistence, chose to use every avenue of appeals over a 
period of another six years, including three appearances before the 
Supreme Court. Once the appeals process was exhausted, Korean Airlines 
invoked the 1920 ``Death On The High Seas Act'' to limit further their 
liability. The inequities of this act were remedied in 2000. However, 
the KAL007 families lost out again, because the retroactivity was 
extended only to the TWA800 crash.
    Since efforts starting in 1955 to modernize the Warsaw system were 
unsuccessful, our Government, the Airline Associations, American 
Airlines and Delta Airlines decided on a concerted effort to form a 
coalition to bring the needed changes.
    This initiative was started by Huguette LaRose, then General 
Counsel of the ``International Air Transportation Association'' (IATA) 
with their Washington Counsel: Warren Dean, James Landry, then General 
Counsel, later Chairman of the Air Transport Association and his 
assistant Nancy van Duyne, later joined by Robert Warren and James 
Casey, Anne McNamara, General Counsel at American Airlines, Jeffrey N. 
Shane, then Assistant Secretary for Policy at the Department of 
Transportation, with Patrick Murphy, Donald Horn, Deputy Assistant 
General Counsel and Peter Schwarzkopf, G. Gene Griffiths then Deputy 
Assistant Secretary for Aviation Affairs at the Department of State, 
later joined by John Byerly, Susan Parson and others.
    Our sad experiences with the Warsaw Convention prompted us to join 
this coalition. We testified for the first time in 1989 before your 
Committee, then chaired by Senator Clayborne Pell, in support of the 
Montreal Aviation Protocol No 3. In 1989.
    The Montreal Aviation Protocols did not pass, nor was an attempt 
successful to enact a ``Supplemental Compensation Plan'' in 1992.
    Despite the lack of success, the Warsaw modernization coalition 
held together and even expanded its size when the then National 
Economic Adviser, Robert Rubin, convened a work group under the 
chairmanship of Peter Yu to discuss the needed improvement in the 
``Warsaw'' system in 1994.
    This time the group included even more of the interested parties, 
the plaintiffs and defense bar, the aerospace manufacturers, the 
airlines and their association, Government agencies, families 
representation, the insurers, etc.
    It became quite clear that while the Work Group could make 
recommendations Treaty changes had to be negotiated within the 
International Civil Aviation Organization in Montreal.
    The ICAO treaty process is a long one. Immediate changes in the 
system were needed. Like in 1965, when the United States had actually 
denounced ``Warsaw'', Alan Mendelsohn at the State Department had 
stepped in and convinced IATA to devise an interairline agreement 
increasing, for the United States only, the liability cap from the 
original ``Warsaw'' $8,300 to $75,000.
    Like in 1965 ``IATA'' again provided a solution in 1995--this time 
with the assistance of their General Counsel Lorne Clark (Huguette 
LaRose had died too prematurely of cancer) to conclude a new global 
``IATA'' Intercarrier Agreement (IIA). This IIA agreement became the 
bridge between the old ``Warsaw'' system and a new Treaty, to be 
negotiated by ICAO, sponsored by ICAO President Assad Kotaite with 
Ludwig Weber his Director of the Legal Bureau. The United States 
Mission at ICAO, then with Carol Carmody and Jack Orlando, now with 
Edward Stimpson and Peter Shapiro assisted in the travails leading to a 
new Treaty.
    Through a continuous series of meetings and via an ICAO Secretary 
General Study Group in which most especially the general Counsel of Air 
New Zealand, Anthony Mercer and the Deputy Assistant General Counsel of 
the US Department of Transportation Don Horn were most helpful, a new 
Treaty Draft evolved which was presented to the ICAO Diplomatic 
Conference in May of 1999--discussed, debated, negotiated and adopted 
as the ``Montreal Convention'' for the Twenty-first Century.
    The original ``Warsaw Convention'' of 1929 and its subsequent 
additional Protocols will ultimately be folded into the new ``Montreal 
Convention'' to restore a truly unified international system for travel 
by air, covering documentation and liability. A companion Treaty (the 
present Treaty of Rome of 1952--not ratified by the United States) to 
address damages caused by air craft on the ground, is presently the 
subject of a General Secretary Study group at ICAO.
    We leave it to others, more qualified to discuss the finer points 
of the two Treaties before you and limit ourselves to discuss the most 
salient improvements in the new ``Montreal Convention'' with ``The 
Hague Protocols'' on the basis of our twenty years experience with the 
old Warsaw system:
        articles 33.2-36 and 39--fifth jurisdiction and carriage
    The introduction of the jurisdiction of the principal or permanent 
residence of the passenger, with definitions of succeeding carriage and 
combined carriage clarifies once and for all where damages are 
resolved. It also addresses the continuity of code share and alliance 
arrangements.
    Our world today operates in global dimensions. Millions of 
nationals of individual countries travel or work all around the world, 
often far away from the domicile where their families continue to live. 
In case of accidents or death their damages issues should be addressed 
fairly in the jurisdiction of the domicile, where their surviving 
families live.
    Presently the jurisdiction is attached to either: where the travel 
document was bought, the final destination, the principal place of 
business or the domicile of the carrier.
    Eva van Schinjdel lived with her husband, an executive of Lucent 
Industries, in Mendham Township, New Jersey. He was assigned to the 
companies office in Singapore and died when Singapore Airlines flight 
SQ006 crashed into construction equipment on taking off from the wrong 
runway in Taipei, Taiwan. Presently, three attorney firms in three 
countries are trying to untangle the problem of the proper 
jurisdiction. In the process Mrs. Van Schinjdel who is a Dutch national 
is reduced to live in a trailer in Holland waiting anxiously for the 
resolution of her predicament.
    Or take Jessica King, an executive of the Marriott Corporation, 
resident of California who was on assignment at the Marriott Hotel in 
Copenhagen (Denmark). Returning from a trip to Milan, her SAS flight 
collided on takeoff with a Cessna business jet, operated by a German 
charter company, at Linate airport in Milan (Italy). The 
jurisdictional, costly and time-consuming disputes in four countries 
are holding up the resolution of her damages to the detriment of her 
surviving United States family.
    Had the Montreal Convention been in force those convoluted disputes 
would not have occurred,
                 articles 17, 21, 23 and 24--liability
    The new Montreal Convention continues to recognize the concept that 
``damages sustained'' can be recovered in a two step process. First 
step: ``Strict liability'' of SDR100,000 (a basket of currencies from 
the United States, England, Japan and the European Community (formerly 
France and Germany), followed by determination of actual provable 
damages.
    This procedure eliminates the ``Warsaw'' cap--originally $8,300 and 
the need to prove ``Wilful Misconduct'' before proceeding to damages.
    The new Montreal Convention therefore eliminates the onerous and 
costly litigation that was to keep the KAL007 families in court for 
almost seventeen years.
    The SDR100,000 are also attached to an escalation clause to 
maintain present day value.
                      article 38--advance payments
    With the development of ever larger, faster planes, flying long 
distances at great height with hundreds of passenger, air crashes have 
resulted in almost total destruction. Because of the sheer force and 
the brutality of such crashes very few identifiable bodies, if any are 
ever recovered. Instead, we are left with thousands of body parts, 
which takes a long time to recover and to identify, mostly through DNA. 
In the Swissair 111 Crash 2\1/2\ million pieces of wreckage and body 
parts were recovered and had to be sorted out.
    Without any identifiable body no death certificate can be issued. 
Without death certificate no will can be probated. Surviving families 
have however to continue their daily lives.
    There is a specific need of reasonable advance payments against 
recoveries for damages sustained. Some carriers have distributed 
$25,000 to cover immediate expenses. The more responsible carriers like 
Air France, Swissair, American Airlines, Alaska Air have distributed 
the the SDR100,000 ``strict liability'' amount. Egyptair has 
distributed one half of the initial settlement offers. Some unification 
in this process is needed.
             article 21 (a) and (b)--preservation of rights
    The carrier preserves its rights to prove that it ``has taken all 
measures'' for the accident not to happen. It also retains the right of 
recourse against third parties.
    Once the United States has ratified the ``Montreal Convention'' it 
is applicable to our country together with all other countries who have 
already deposited their instruments with the 999 ICAO, such as: Canada, 
Japan, New Zealand. Two European Countries (Greece and Portugal) have 
deposited their ratifications. Eleven European countries have ratified 
but wait for the remaining two countries (Germany and Holland) to 
complete their process.
    Mr. Chairman, Members of the Committee, we thank you for your 
attention. We shall gladly answer any questions you may have and we 
conclude with the hope that you will recognize the substantial work 
which our coalition has done to come before you with a mature Treaty 
for the Twenty first Century, worthy for the Senate's Advice and 
Consent.

                                 ______
                                 

    Prepared Statement of Air Transport Association of America, Inc.

    Chairman Lugar, Senator Biden, and Members of the Committee, the 
member airlines of the Air Transport Association of America, Inc.,\1\ 
would like to thank you for giving the industry the opportunity to 
submit its views on two important aviation treaties pending before the 
Committee, the Montreal Convention of 1999 and The Hague Protocol of 
1955. These two treaties are important components of one of the most 
widely accepted treaty systems in effect, consisting of the 1929 Warsaw 
Convention and its related instruments. Their ratification by the 
United States will not only bring important benefits to both the users 
and providers of international air transportation services, it will 
also bring the United States into legal conformity with the vast 
majority of the aviation partners of the United States.
---------------------------------------------------------------------------
    \1\ The ATA's member airlines are: Airborne Express, Alaska 
Airlines, Aloha Airlines, America West Airlines, American Airlines, ATA 
Airlines (formerly American Trans Air), Atlas Air, Continental 
Airlines, Delta Air Lines, DHL Airways, Emery Worldwide, Evergreen 
International Airlines, Federal Express, Hawaiian Airlines, JetBlue 
Airways, Midwest Airlines, Northwest Airlines, Polar Air Cargo, 
Southwest Airlines, United Airlines, United Parcel Service, and US 
Airways. Associate members are: Aerovias de Mexico, Air Canada, Air 
Jamaica, KLM-Royal Dutch Airlines, and Mexicana de Aviacion.
---------------------------------------------------------------------------
    The Committee held a hearing on these important treaties on June 
17, 2003, at which representatives of the Departments of State and 
Transportation appeared as witnesses. As an initial matter, we would 
like to expand upon some important issues raised at the hearing. The 
first is that the principal feature of the Montreal Convention, the 
elimination of the Warsaw system's limits of liability for passenger 
injury and death, is not new. The world's major U.S. and foreign air 
carriers, including all members of the Air Transport Association, 
agreed to enter into special contracts to waive the limits in 1996 and 
implemented those agreements soon thereafter. In effect, the Montreal 
Convention codifies the liability rules the industry itself adopted in 
1996. The industry took that initiative shortly after it became 
apparent that the United States Senate had continuing concerns about 
the liability rules reflected in Montreal Protocol No. 3 to the Warsaw 
Convention, and that advice and consent to the ratification of that 
instrument was not likely.
    For these reasons, the ratification of the Montreal Convention 
presents an historic opportunity for the United States to realize the 
Warsaw system's goal of true uniformity in the documentation and 
liability rules applicable to international air transportation. It is 
an instrument that recognizes and accepts many principles that are 
important to U.S. interests. For example, the Montreal Convention 
codifies an unlimited compensatory liability system premised on 
presumed air carrier liability to protect international passengers in 
the event of an accident that results in injury or death. In addition, 
passengers will be able to recover up to approximately $140,000 in 
proven compensatory damages without regard to any fault whatsoever. At 
the same time, the Montreal Convention recognizes and accepts the 
legitimate concerns of the major aviation partners of the United 
States. For example, the kinds of damages recoverable under the 
Montreal Convention have not changed, the requirement that an accident 
must have occurred is preserved, and the exclusivity of the Montreal 
Convention's rules is affirmed to preserve their integrity. In sum, 
these rules, derived from the industry's 1996 intercarrier agreements, 
will continue to provide important benefits to passengers for the 
foreseeable future while ensuring their worldwide uniformity.
    In the case of cargo, the Montreal Convention incorporates and 
modernizes the important documentation and liability reforms of 
Montreal Protocol No. 4, to which the Senate gave its advice and 
consent in 1998. These rules are extremely important to the economy of 
the United States because approximately $600 billion of goods annually 
enter and depart the United States by air. Air carriers, shippers, and 
insurers depend upon the predictable and uniform application of the 
Warsaw system's rules with respect to the international air 
transportation of cargo. It was the objective of the United States to 
preserve the benefits of Montreal Protocol No. 4 in the Montreal 
Convention and the Air Transport Association of America strongly 
supported the realization of that objective. The Montreal Convention, 
like Montreal Protocol No. 4, allows electronic documentation of 
shipments, without unnecessary and archaic documentation requirements, 
such as a description of the nature of the goods.
    The Montreal Convention reflects many improvements that will bring 
up to date the application of the Warsaw system's rules. Important 
among these is the addition of a rule that expands the jurisdictional 
options available to passengers in the case of transportation that is 
not to and from the passenger's state of principal and permanent 
residence, the so-called fifth basis ofjurisdiction. The Air Transport 
Association of America has been a consistent supporter of this reform, 
which we hope will encourage courts to apply the law of passengers' 
country of residence to determine the amount of damages to which they 
are entitled.
    The Montreal Convention also reflects changes in light of modem 
commercial practice in the industry, such as code-share operations. The 
Montreal Convention provides that both the operating air carrier and 
the ticketing air carrier are liable to the code-share passenger. It is 
important to understand that the operation of these rules is consistent 
with current law. These rules apply only with regard to passengers 
actually traveling under a code-share ticket. Passengers traveling 
under the code of the operating carrier have recourse only against that 
carrier, regardless of whether there are also code-share passengers on 
that particular flight.
    Another important improvement is that the Montreal Convention 
brings up to date the rules applicable to cargo in light of the fact 
that many air cargo terminals are now located outside the boundaries of 
the airport itself. Some courts have held that the language of the old 
Warsaw Convention effectively excludes losses that occur in off-
airport, as opposed to on-airport, warehouses. The Montreal Convention 
adds new language recognizing that surface carriage outside the airport 
itself takes place in performance of the carriage by air, to be deemed 
to be within the period of carriage by air. That includes off-airport 
facilities, and should allow air carriers to cover those activities by 
their contract of carriage.
    The Montreal Convention is unique among the instruments of the 
Warsaw system in that it is a recodification of its rules in their 
entirety and will replace, according to its terms, the Warsaw 
Convention, as amended. As with any recodification effort, the treaty 
contains changes in language that reflect the passage of the seventy 
years since the original Warsaw Convention was finalized. It is 
therefore important that courts not read the Montreal Convention as 
changing the legal landscape in ways that were not intended just 
because the Montreal Convention may use somewhat different language 
from that used by the Warsaw Convention to state the same rule. We 
therefore believe that the Committee's report on the Montreal 
Convention should reflect this principle, which commonly accompanies 
recodifications of U.S. law by the Congress.
    Finally, the Air Transport Association of America is pleased that 
the Committee is also considering The Hague Protocol of 1955 to the 
Warsaw Convention. This treaty was before the Committee when it 
recommended that the Senate give its advice and consent to ratification 
of Montreal Protocol No. 4. At that time, it was assumed that adherence 
to Montreal Protocol No. 4 effected adherence to The Hague Protocol. 
There continues to be agreement on that principle for transportation 
involving other countries party to Montreal Protocol No. 4. However, a 
recent judicial decision has raised uncertainty about the application 
of this principle to transportation involving a state that has ratified 
The Hague Protocol but not Montreal Protocol No. 4. While the Air 
Transport Association believes that decision to be incorrect, the 
uncertainty created by that decision could undermine many of the 
benefits often associated with the ratification of Montreal Protocol 
No. 4, and those largely will be corrected with prompt ratification of 
The Hague Protocol.
    In conclusion, the Air Transport Association appreciates this 
opportunity to express its views on the two important aviation 
treaties. We look forward to working with you in support of the advice 
and consent of the United States Senate for these two instruments.

                                 ______
                                 
                        American Chemistry Council,
                                         1300 Wilson Blvd.,
                                      Arlington, VA, June 20, 2003.

The Honorable Richard Lugar, Chairman
Senate Foreign Relations Committee,
United States Senate,
Washington, DC.

The Honorable Joseph Biden
Senate Foreign Relations Committee,
United States Senate,
Washington, DC.

    Dear Senator Lugar and Senator Biden:

    On behalf of the American Chemistry Council and the Chlorine 
Chemistry Council, I am submitting our written statement in support of 
the Senate Foreign Relations Committee's action on two new treaties 
designed to improve international chemicals management, the Stockholm 
Convention on Persistent Organic Pollutants and the Rotterdam 
Convention on Prior Informed Consent.
    The Councils and their members worked with the U.S. and other 
governments throughout the negotiations to assure that these agreements 
enhance health and environmental protection and protect commercial 
interests. We believe it is in the interest of the United States to be 
one of the original ratifying governments on each of the treaties, and 
we look forward to working with you and your staff as the Committee 
considers the agreements.
    If we can provide any additional information on these treaties or 
the Council's position, please let me know, or have your staff contact 
Michael Walls, ACC's Senior Counsel.
            Sincerely,
                                     Larry W. Rampy
                                 American Chemistry Council
                                           Product Stewardship Team

          Prepared Statement of the American Chemistry Council

    The American Chemistry Council (ACC), on behalf of itself and the 
Chlorine Chemistry Council (CCC), is pleased to state strong support 
for the Stockholm Convention on Persistent Organic Pollutants (POPs) 
and the Rotterdam Convention on Prior Informed Consent (PIC). The 
Council and its members urge the Senate Foreign Relations Committee to 
recommend that the Senate provide advice and consent to U.S. 
ratification of the treaties as soon as possible.
    The American Chemistry Council is the national trade association 
whose member companies represent more than 90 percent of the productive 
capacity for basic industrial chemicals in the United States. The 
Chlorine Chemistry Council is a unit of the ACC dedicated to 
representing the interests of chlorine manufacturers. Together, ACC and 
CCC members represent an industry on the cutting-edge of technological 
innovation and progress, whose products provide significant benefits to 
every sector of the global economy. The industry was actively engaged 
in the negotiation of both the Stockholm and Rotterdam Conventions for 
many years, and has been a strong supporter of measures necessary to 
implement both Conventions into U.S. law and practice.
    The chemical industry's support for these treaties lies in several 
simple points.

   The industry's support is based on our commitment to product 
        stewardship, including our goal of preventing health and 
        environmental damage in the manufacture and use of chemical 
        products. Our industry's product stewardship commitment is an 
        integral part of our Responsible Care program, which 
        is now being implemented by the chemical industry in more than 
        42 countries.

   The Stockholm Convention is the culmination of many 
        different initiatives by both industry and governments to 
        address the concerns about persistent organic pollutants. It is 
        the next best step to assure that governments around the world 
        take appropriate measures to control the manufacture, use and 
        disposal of POPs and to reduce unwanted POPs emissions.

   The Stockholm Convention adopts a risk-based, science-
        justified approach to considering possible additions to the 
        list of chemicals. It is an approach entirely consistent with 
        longstanding U.S. law and practice, and one that will lead to 
        appropriate controls on those POPs chemicals that pose global 
        threats.

   The Rotterdam Convention reflects the internationalization 
        of a chemical export notification process first adopted by the 
        United States as part of the Toxic Substances Control Act 
        (TSCA). The treaty provides an appropriate mechanism to inform 
        importing governments of the chemical regulatory measures 
        adopted in other countries, in a way that does not 
        unnecessarily burden international trade or commerce.

   Further, the treaty codifies an existing voluntary program 
        already being implemented by 155 countries around the world. 
        The voluntary program was first implemented in 1987, as a set 
        of guidelines for industry and governments developed through 
        the U.N. Environment Programme (UNEP) and the U.N. Food and 
        Agriculture Organization (FAO).

    The U.S. chemical industry's work on the Stockholm and Rotterdam 
Conventions dates back to 1986, when the international 
intergovernmental community began to turn its attention to the need for 
improved information exchange between governments on chemical 
regulatory matters. We worked with UNEP and FAO on the U.N. Guidelines 
for the Exchange of Information on Chemicals in International Trade, 
and we provided critical support for the amendments to the Guidelines 
that first adopted the concept of Prior Informed Consent. Our efforts 
on POPs began shortly after the Rio Summit on Environment and 
Development, in 1992. We worked with the Intergovernmental Forum on 
Chemical Safety (IFCS) in its effort to map the best approaches to 
dealing with POPs, particularly in discussions on criteria for 
identifying potential POPs. The industry also participated in the 
negotiations sponsored by the U.N. Economic Commission for Europe 
(UNECE) and the North American Commission on Environmental Cooperation 
(NACEC) as those regional POPs programs were developed and implemented.
    In short, the U.S. chemical industry has been an early and 
consistent supporter of enhanced, harmonized international programs on 
chemicals, including appropriate controls on global pollutants of 
concern such as POPs.
    The Council believes that it is critical for the United States to 
continue its longstanding leadership role in both the Stockholm and 
Rotterdam Conventions. In order to continue in that role, however, the 
United States must be a full Party to the agreements. In ACC's view, 
the United States should be one of the first 50 countries ratifying the 
Stockholm and Rotterdam Conventions. As an original ratifying Party, 
the United States will be able to lead--and appropriately influence--
the development of procedures necessary to implement the treaties at 
the international level. The U.S. government's ability to influence the 
further development and implementation of the treaties at the 
international level requires, simply, full U.S. participation in the 
agreement.
    Several provisions of the two treaties warrant the Committee's 
attention.
    The Council is particularly pleased that the Stockholm Convention 
incorporates the use of a risk/benefit approach in implementing 
appropriate regulatory controls on listed chemicals, and in considering 
chemicals nominated as potential POPs. The treaty's reliance on 
technical and economic considerations should ensure that priority 
pollutants are targeted and meaningful control actions taken.
    It is imperative that the Senate maintains a strong oversight role 
with regard to chemical additions under the Stockholm Convention. The 
addition of a chemical to the Stockholm Convention constitutes an 
amendment to the Convention and could result in significant 
implications for U.S. commerce. Therefore, in ACC's view, it is 
important that the Senate in general, and the Foreign Relations 
Committee in particular, retain appropriate oversight of the additions 
process. This strong oversight role is consistent with the Senate's 
actions on other agreements.
    Article 25 of the Stockholm Convention contains a provision 
allowing any government to ``opt-in'' to potential amendments listing 
new chemicals. The Council believes that the resolution of ratification 
on the Stockholm Convention should expressly note the United States' 
intention to rely on that provision with respect to future amendments. 
Further, the Council believes that the Committee should be notified and 
consulted regarding potential Administration decisions on amendments, 
including additions, to the Convention. This advance notice and 
consultation should be ongoing so that it occurs at critical intervals 
during the international process for considering additions under the 
Convention.
    The Rotterdam Convention on Prior Informed Consent also merits the 
Committee's favorable consideration. As noted earlier, this Convention 
was negotiated on the basis of a very successful government-to-
government information exchange system that reflects existing U.S. law 
and practice. The Convention requires the United States to provide 
appropriate notification of exports of PIC chemicals to other 
countries, a requirement well in keeping with our industry's efforts to 
assure appropriate stewardship of chemical products.
    In conclusion, the American Chemistry Council believes that the 
Stockholm and Rotterdam Conventions are an important step in 
harmonizing international and national chemical regulatory approaches. 
Once these agreements are implemented, they should make a meaningful 
contribution to improvements in public health and environmental 
protection. The Council looks forward to working with the Committee in 
its consideration of the Stockholm and Rotterdam Conventions.

                                 ______
                                 

  Prepared Statement of Alaska Nanuuq Commission, Charles H. Johnson, 
                           Executive Director

u.s.-russia agreement on the conservation and management of the alaska-
                     chukotka polar bear population
    Chairman Lugar,
    Thank you for this opportunity to submit testimony on this historic 
hearing to ratify a treaty that insures that nanuuq the polar bear will 
be enjoyed by our descendants. This treaty is a tribute to the late 
Mollie Beatty, director of the U.S. Fish and Wildlife Service and her 
Native American Policies.
    The Alaska Nanuuq Commission (ANC) was formed in 1994 to represent 
Alaska Natives in North and Northwest Alaska on matters concerning the 
conservation and sustainable subsistence use of polar bears. Our goal 
and objectives are:

          1. Encourage and implement self-regulation of polar bear 
        hunting and use by Alaska Natives.

          2. Enter into co-management and other local and international 
        agreements with appropriate governmental, Native, or other 
        organizations.

          3. Be involved in all phases of scientific, biological, and 
        other research programs involving polar bears and the Arctic 
        ecosystem.

          4. Provide information and educational materials to the 
        public, appropriate state and federal agencies, and other 
        interested parties.

    In 1989 the Soviet Union informed the U.S. Fish and Wildlife 
Service that it had reclassified the polar bear in the Alaska-Chukotka 
population from endangered to ``recovered'' in it ``Red Book'' and 
wanted to share in the harvest with Alaska Natives. The Service then 
notified the Alaska Native organizations in North and Northwest Alaska 
that an agreement with the Soviet Union was being considered that would 
allow Native Peoples of Chukotka to legally hunt polar bears and 
invited representatives of the Native community to participate in the 
negotiation.
    The Alaska Nanuuq Commission participated as an equal partner with 
the Service in the negotiations with Russia and encouraged Russia to 
include representatives of the Chukotka native community on their 
delegation.
    In 1997 a grass roots organization to represent native hunters was 
formed in Chukotka. That organization now called the Chukotka 
Association of Traditional Marine Mammal Hunters (CHAZTO in Russian) is 
now well established in Chukotka and was able to participate in the 
final negotiations of the treaty. The ANC and CHAZTO have developed a 
draft Native-to-Native agreement to implement the treaty and develop 
methods for quota distribution and management of the subsistence hunt 
when it becomes legal in Chukotka.
    Because polar bear hunting in Chukotka has been banned since 1956, 
measures to manage the hunt and enforce regulations are not in place. A 
draft management plan has been developed by CHAZTO for Chukotka in 
cooperation with the government of Chukotka and the Ministry of Natural 
Resources. However the Russian government is waiting for the U.S. 
ratification of the treaty before it enacts its management plan.
    Unfortunately many native (and some non-native) hunters in Chukotka 
are under the false impression that hunting polar bear is now legal 
because the treaty was signed on October 16, 2000 and polar bears are 
being harvested in alarming numbers.
    During a meeting in Anadyr, Chukotka, CHAZTO and ANC issued a joint 
statement urging our respective governments to quickly ratify the 
treaty for the conservation of our shared polar bear population. I have 
attached that joint statement.
    This treaty allows the Native Peoples of Alaska and Chukotka to 
actively participate in the management of the subsistence hunt of polar 
bears and we hope that it is quickly passed on the full Senate for 
ratification.
    Thank you.

                                 ______
                                 

     Prepared Statement of Bering Sea Program, World Wildlife Fund

                               World Wildlife Fund,
                                1250 Twenty-Fourth St., NW,
                                     Washington, DC, June 17, 2003.

The Honorable Richard Lugar, Chairman
Senate Foreign Relations Committee,
U.S. Senate,
Washington, DC.

Re: U.S.-Russia Agreement on The Conservation and Management of the 
Alaska-Chukotka Polar Bear Population

    Dear Chairman Lugar:

    On behalf of World Wildlife Fund's 1.2 million members in the 
United States, I wish to express support for the ratification of the 
U.S.-Russia agreement ``On the Conservation and Management of the 
Alaska-Chukotka Polar Bear Population,'' and to ask that you please 
make this letter a part of the committee's hearing record on the 
treaty.
    This agreement represents an important measure needed to conserve a 
species which the U.S. and Russia share in the region that binds our 
two nations--the Bering-Chukchi Sea. In October 2000, after several 
years of negotiation, the U.S. and Russia signed the polar bear 
agreement. However, despite broad national and international support 
and support within Chukotka and Alaska--particularly among the Alaska 
congressional delegation--the treaty has yet to be ratified. 
Implementing legislation for the treaty is long overdue.
    There are an estimated 2,000-5,000 polar bears in the Alaska-
Chukotka polar bear population. These animals range widely along 
northeastern Siberia's Chukotka Peninsula, on the ice and islands and 
nearshore areas (seasonally) of the Chukchi and northern Bering seas, 
and in northwest Alaska. Conservation efforts have been hampered by a 
lack of adequate coordinated management and funding across the U.S.-
Russia boundary. This agreement is a critical step forward in 
overcoming these obstacles, restricting hunting of the bear for the 
first time and instituting a system to sustainably manage the polar 
bear population.
    Currently a wide range of threats to the bears and their habitat 
continues to pose concern to conservationists. Climate change, toxic 
contamination, poaching, habitat loss, oil spills, and the disruption 
of their food chain caused by fisheries mismanagement are among those 
factors that may adversely affect the polar bear's future.
    More urgent, however, is the unregulated and illegal hunting 
occurring on the Russian side of the Bering Sea. According to local 
Russian experts monitoring the situation on the ground, approximately 
100-200 bears have been harvested annually in recent years. Although 
the main motivation for taking polar bears in Russia is for food, many 
of the hides from these animals are entering commercial markets 
illegally and acting to fuel harvest demand. In the 1950's in the 
United States, sport hunting of polar bears at the same or lower levels 
severely depleted the polar bear population, which finally gained 
protection under the Marine Mammal Protection Act. In Russia, the polar 
bear is listed in the Russian Red Book of Rare and Endangered Species 
(because this population is listed as Category V--``recovered''--it is 
eligible to be hunted). This bilateral agreement is critical to 
establishing a sanctioned program of management and enforcement of 
subsistence-use only harvesting.
    The bilateral agreement specifically bans the hunting of bears in 
dens or females with cubs and prohibits the use of poison, traps and 
snares, as well as the use of aircraft or large motorized vessels or 
vehicles to hunt polar bears. The agreement also authorizes limited 
hunting by native peoples for subsistence purposes, and creates a 
bilateral commission to determine and allocate annual harvest quotas 
and requires monitoring and enforcement to protect against the kind of 
polar bear population decline that might occur at the hands of poachers 
or commercial hunters.
    We urge you to ratify this agreement for the benefit of this 
population of polar bears, a keystone species in the northern 
environment, as well as for future generations of Americans.
            Sincerely,
                                          Margaret Williams
                                       Director, Bering Sea Program

                                 ______
                                 

                             Defenders of Wildlife,
                                1130 Seventeenth St., N.W.,
                                     Washington, DC, June 18, 2003.

The Honorable Richard Lugar, Chairman
Foreign Relations Committee,
U.S. Senate,
Washington, DC.

The Honorable Joseph Biden, Ranking Member
Foreign Relations Committee,
U.S. Senate,
Washington, DC.

    Dear Mr. Lugar and Mr. Biden:

    Defenders of Wildlife is writing to reiterate our wholehearted 
support for ratification of Treaty Doc. 107-10, dated July 11,2002 and 
titled:

          Agreement between the Government of the United States of 
        America and the Government of the Russian Federation on the 
        Conservation and Management of the Alaska-Chukotka Polar Bear 
        Population done at Washington on October 16, 2000.

    Defenders represents nearly a million members and supporters from 
all walks of life across the United States and we focus much of our 
efforts on issues such as this that help to preserve biodiversity and 
ensure good scientific management of the world's wildlife resources. 
Enclosed is a copy of our original letter of support written to 
Interior Secretary Gale Norton and Assistant Secretary of State John 
Turner urging their support of this Treaty. Conditions for this 
population of polar bears have not improved since we sent the original 
letter and are unlikely to do so until this Treaty is ratified. We 
respectfully urge you to do what you can to expedite this process and 
get the Treaty in action. Thanks for your attention to this matter.
            Sincerely Yours,
                                     Mark L. Shaffer, Ph.D.
                                 Senior Vice President for Programs

                             Defenders of Wildlife,
                                1130 Seventeenth St., N.W.,
                                     Washington, DC, June 18, 2003.

Honorable Gale Norton
Secretary of the Interior
Department of the Interior
1849 C Street, NW
Washington D.C. 20240

RE: Agreement Between the Government of the United States of America 
and the Government of the Russian Federation on the Conservation and 
Management of the Alaska-Chukotka Polar Bear Population

    Dear Secretary Norton:
    We are writing to express our concern at the apparent delay in 
presenting the Agreement on the Conservation and Management of the 
Alaska-Chukotka Polar Bear Population, to the U.S. Senate for 
ratification. This landmark agreement was signed by both the United 
States and Russia on 16 October 2000 but has not yet been ratified. The 
exact status of this polar bear population unknown and it may be 
vulnerable to over-exploitation because of illegal hunting in the 
Chukotka region of Russia, and because of unrestricted, but legal, 
hunting by Alaskan natives on the American side (unrestricted unless 
they become ``Threatened'' or ``Endangered'' under the Endangered 
Species Act or ``depleted'' under the Marine Mammal Protection Act).
    This agreement ensures the long-term conservation of the Alaska-
Chukotka polar bear population through unified management, conservation 
and research programs between Russia and the US. It also provides the 
authority to develop and enforce harvest limits for this western arctic 
population of bears, something that is lacking at present. The 
Agreement also is responsive to the indigenous culture of both 
countries regarding subsistence hunting, and includes a native official 
and a government official from both countries on the joint commission 
that establishes enforceable harvest limits. In fact, the agreement is 
fully supported by Native organizations from both countries who 
identified the need for cooperative management of this polar bear 
population and freely surrender their unlimited harvest rights to this 
end.
    The agreement is similar to existing management guidelines 
established for American bear populations and would prohibit the taking 
of cubs, females with cubs and denning bears. It would also prohibit 
all commercial use of harvested bears and eliminate the use of aircraft 
and large motorized craft in the hunt. Finally the agreement would help 
coordinate habitat conservation and population monitoring between the 
two countries. In our consultations with many of the world's leading 
polar bear experts there is unified agreement that this agreement is 
necessary for long-term conservation of this polar bear population. The 
danger of over-harvesting most of the remaining polar bear populations 
has been virtually eliminated because of cooperative management using 
the most modern monitoring techniques available. It is time to ensure 
the same for the Alaska-Chukotka population as well.
    Thanks for your consideration in this matter and we hope you will 
agree with the value of this Agreement and send your endorsement on to 
the Senate for ratification in the near future.
            Sincerely,
                                     Mark L. Shaffer, Ph.D.
                                 Senior Vice President for Programs

                                 ______
                                 

     Prepared Statement of Environmental Technology Council, Scott 
           Slesinger, Vice-President for Governmental Affairs

 on the ratification of the stockholm convention on persistent organic 
                               pollutants
    My name is Scott Slesinger. I am Vice-President for Governmental 
Affairs of the Environmental Technology Council. Our council represents 
environmental service companies that dispose, destroy and recycle 
hazardous waste. Several of our companies have Toxic Substances Control 
Act (TSCA) permits for destruction and disposal of PCBs, the most 
ubiquitous of the Annex A chemicals. Many of our companies hold 
Resource Conservation and Recovery Act (RCRA) permits for proper 
destruction and disposal of the other POPs Annex A chemicals. We 
support the entire Persistent Organic Pollutant Treaty. However, 
because the Senate is expected not to pass language implementing a key 
principle of the treaty dealing with destruction of persistent 
pollutants, we urge that this Committee recommend that the Senate 
reject the Treaty's ratification.
                        the intent of the treaty
    The treaty is concerned with the intention and unintentional spread 
of organic persistent organic pollutants. Because of their chemical 
make-up, these chemicals persistent in the environment, vaporize into 
the atmosphere and eventually drop back to earth to contaminate areas 
sometimes thousands of miles from their source. EPA has noted that 
despite the over 25-year ban on PCBs in Canada and the United States, 
PCBs continue to appear in the Great Lakes and Great Lakes organisms 
from foreign sources.
    As the Treaty notes, ending the manufacturing and use of these 
chemicals does not solve the problem. The chemicals must be chemically 
or molecularly changed so they no longer have the dangerous 
characteristics. Because the technology to properly disposed and 
destroy is expensive, complex and dangerous in unskilled hands, few 
countries have the volume of these chemicals to justify the costs to 
construct facilities to meet the Treaty's standards for proper 
disposal. In recognition of this, the treaty bans imports and exports 
except for proper disposal.
                              domestic law
    Because of an anomaly in domestic law only one chemical in the 
universe cannot be imported into the United States even for proper 
disposal except through a unique burdensome administrative rulemaking 
procedure that makes it impractical.\1\ That chemical is PCBs, a Treaty 
Annex A chemical. Under a 1976 provision in the Toxic Substances 
Control Act (TSCA) Section 6(e), a full rulemaking is required before 
PCBs can be imported for manufacturing or use. If such rule is issued, 
it allows imports for only one year. Private entities have tried to 
import PCBs for disposal but have found the legal cost--not to mention 
the likelihood of the petition being rejected--to far outweigh the 
financial revenue such import could justify. In recognition of this 
problem, former EPA Administrator Carol Browner issued a programmatic 
rule that stated that importing for disposal (as opposed to use) was an 
environmental preferable option and stated that importing PCBs for 
disposal is consistent with Section 6(e) of TSCA and protecting public 
health and the environment. 61 FR 11096 (March 18, 1996). However the 
Ninth Circuit threw out the rule on a narrow interpretation that the 
term ``manufacture'' in TSCA included ``import for disposal.''
---------------------------------------------------------------------------
    \1\ In 27 years, EPA has approved only one 6(e) exemption. That was 
in January of this year for the only entity with the resources and 
volume of PCBs to justify going through the process--The Department of 
Defense. 68 Federal Register 4934 (January 31, 2003).
---------------------------------------------------------------------------
                        where do pcbs come from?
    Ironically, most the PCBs that are banned for importation for 
disposal were manufactured in the United States. The vast majority of 
PCBs in the world, 700,000 tons, were manufactured in the United States 
between 1927 and 1977.\2\ Before the risks of PCBs were known, American 
companies exported equipment that used PCBs as an insulator. Because of 
Sec. 6(e), those American-made PCBs, even those owned by American 
companies, are now considered ``foreign'' and cannot be imported back 
into the United States for destruction. Imagine if the Canadians 
exported a dangerous substance, shipped it to the Untied States and 
then banned their export back into Canada. That is exactly the case 
with PCBs except we are the country that refuses to repatriate the 
chemical in question. That arguably contradicts the Treaty's references 
to manufacturers' and polluters' responsibility under this and various 
other international agreements.
---------------------------------------------------------------------------
    \2\ ``Status of PCB Management in the United States,'' Ross and 
Associates, prepared for the Commission for Environmental Cooperation, 
Montreal, Canada, August 24, 1995. The volume eventually exported is 
estimated by Ross to be 75,000 tons.
---------------------------------------------------------------------------
                     proper treatment and disposal
    The United States, through both TSCA and the Resource Conservation 
and Recovery Act (RCRA) have world class standards for PCB disposal and 
destruction that meets the Treaty's requirements for proper disposal. 
Chemical dechlorination is an effective non-thermal technology for 
lower concentration PCB wastes. Chemical dechlorination separates the 
chlorine molecule from the PCBs to form salts. This chemical treatment 
is 100% effective in destroying PCBs that are in concentrations below 
12,000 parts per million but it is too dangerous at higher 
concentrations. Most of the PCBs, including all 1,500 tons that is now 
being imported by the Department of Defense are in concentrations of 
less that 12,000 parts per million. Incineration is the necessary 
treatment with higher concentrations. Under TSCA, incinerators are 
required to have an efficiency of PCB destruction of 99.9999%. Land 
disposal in engineered Subtitle C landfills is permitted when PCBs are 
below 500 parts per from remediation sites or otherwise to 50 parts per 
million. These are consistent with world-class requirements required in 
Article 6 of the Treaty.
    Those who are urging the Senate not to implement this part of the 
treaty concentrate on the issue of thermal destruction of PCBs would 
cause dioxin releases. Under the Clean Air Act, these incinerators must 
meet the most protective emission standards of any industrial source in 
the U.S. that include specific technologies to control dioxin. As the 
EPA data in Appendix A shows, hazardous waste combustors are very minor 
emitters of dioxin compared to wood burning stoves, municipal 
incinerators and most sources of dioxin in the United States.
    Critics of our position believe that exporting technology is the 
answer to destruction of foreign-based PCBs. However, such exports are 
a chimera. Basel and other treaties, as well as activists are very 
concerned that if developing countries have the capacity for hazardous 
waste disposal, they will become the dumping ground for first world 
waste. Hence, any attempt to export mobile technologies to destroy 
U.S.-made PCBs is seen in that light. Clearly, exporting such 
technology is not politically practical.
    In addition, we must remember that the technology to properly 
dispose of these chemicals is highly capital intensive. Many countries, 
such as Mexico, have significant volumes of PCBs but not the volumes 
justifying investment into the treatment technologies that are required 
to meet international standards. As President Bush stated at the Treaty 
signing:

        ``. . . This treaty takes into account understandable concerns 
        of less-developed nations. When these chemicals are used, they 
        pose a health and environmental threat, no matter where in the 
        world they are allowed to spread. But some nations with fewer 
        resources have a harder time addressing these threats, and this 
        treaty promises to lend them a hand.''

    If we don't allow imports for proper disposal, unused equipment, 
contaminated with PCBs will be continued to be improperly disposed in 
municipal landfills or stored indefinitely until they leak and enter 
the environment. These conditions pose a continuing potential threat to 
health and the environment in those countries and in the United States.
    When Administrator Carol Browner issued their programmatic PCB 
determination, the preamble state:

          ``The EPA believes that PCB wastes which are not disposed of 
        for extended periods of time or which are not disposed of in 
        facilities providing equivalent protection from release to the 
        environment may pose an unreasonable risk of injury to health 
        and the environment. Therefore, EPA believes today's rule which 
        allows foreign generated PCB wastes to be disposed of in a 
        proper and safe manner in the United States is consistent with 
        the requirements it has promulgated for storage and disposal of 
        domestically generated PCB wastes.'' \3\ Id. at 11096.
---------------------------------------------------------------------------
    \3\ The Agency makes clear that it only considered the impact on 
the environment in the United States in making its determination. Id. 
at 11097. Clearly, there is a benefit in the country where the PCBs 
were being stored.

---------------------------------------------------------------------------
In 1979, EPA stated

          ``that closing the U.S. border to shipment of PCB wastes at 
        this time
        . . . could have a serious adverse effects on the environment 
        by making safe disposal of PCBs more difficult In particular, 
        baring import of PCBs for disposal could make export for 
        disposal impossible and thereby eliminate what in many cases 
        would be the most desirable disposal alternative. 44 FR 31514, 
        31526-27 (May 31, 1979). . . . [f]oreign disposal alternatives 
        may not adequately destroy the PCBs and create a threat to 
        human health and the environment in the Untied States. Id. at 
        31526.
                     what does the treaty require?
    Some have tried to argued that a narrow reading of the treaty is 
consistent with continuing the restrictions on PCB imports. We believe 
that is an improper reading of the treaty. Article 3 Section 2.(a) 
states ``Each Party shall take measures to ensure that a chemical 
listed in Annex A is imported only for the purpose of environmentally 
sound disposal as set forth in paragraph 1(d) of Article 6.'' It does 
not say ``No export or import of Annex A except a country may make an 
exception for proper disposal.'' The preamble notes that developed and 
developing countries have different capabilities and needs and there is 
a conscious need to take measures to prevent adverse effects caused by 
possess at all stages of their life cycle. The preamble also states the 
general theory that the polluter is responsible for the pollution. 
Restricting the importation of a pollutant into the country of origin 
is inconsistent with this treaty intent.
    Some argue that placing a three-year delay rulemaking process that 
is not required for importing any other item into the United States is 
consistent with this section. We believe such a barrier is not only 
inconsistent with this treaty but with virtually all our trading 
agreements such as NAFTA. As I noted, most countries do not have the 
volumes of PCBs to justify the sophisticated technology to properly 
dispose or destroy their domestic supplies of PCBs. Keeping the present 
regulatory barrier at the border would make it economically infeasible 
to import and therefore destroy PCBs is clearly contrary to the 
Treaty's preamble to ``protect human health and the environment through 
measures which will reduce and/or eliminate emissions and discharges of 
persistent organic pollutants.''
    The Carter, Clinton and George W. Bush Administration recognized 
that disposal of ``foreign'' PCBs in the United States was good 
environmental policy that was barred by a Court interpretation that 
precluded imports of PCBs. Now the Senate is presented with a Treaty 
that is consistent with that policy but still contradicts the wording 
in TSCA. However, it appears the authorizing Committee, listening to 
narrow interests and those who feel this issue is too controversial, 
are going to spurn good environmental policy that helps American 
companies abroad, helps the world environment and the goals of the 
Treaty.
    Some critics of environmental treaties argue that place a 
disproportional burden on our country. As the country of origin of the 
key pollutant in this treaty, that is clearly not the case with this 
Treaty. In fact, not amending TSCA to be consistent with the Treaty is 
inconsistent with our moral obligations as the manufacturer of PCBs.
    In conclusion, until the authorizing Committee demonstrates that it 
intends to implement the entire Treaty, we urge the Senate to not 
ratify a treaty our country has no intention in implementing.

                 APPENDIX A--Inventory of Sources of Dioxin-Like Compounds in the United States
                                   [grams dioxin equivalent emitted per year]
----------------------------------------------------------------------------------------------------------------
                                                                  1987 Emissions  1995 Emissions      Percent
                             Source                                (g TEQdf-WHO    (g TEQdf-WHO   Reduction 1987-
                                                                      98/yr)          98/yr)           1995
----------------------------------------------------------------------------------------------------------------
Municiple Solid Waste Incineration, air.........................          8877.0          1250.0             88%
Backyard Refuse Barrel Burning, air.............................           604.0           628.0             -4%
Medical Waste Incineration, air.................................          2590.0           488.0             81%
Secondary Copper Smelting, air..................................           983.0           271.0             72%
Cement Kilns (hazardous waste burning), air.....................           117.8           156.1            -33%
Sewage Slude/land applied, land.................................            76.6            76.6              0%
Residential Wood Burning, air...................................            89.6            62.8             30%
Coal-fired Utilities, air.......................................            50.8            60.1            -18%
Diesel Trucks, air..............................................            27.8            35.5            -28%
Secondary Aluminum Smelting, air................................            16.3            29.1            -79%
2,4D, land......................................................            33.4            28.9             13%
Iron Ore Sintering, air.........................................            32.7            28.0             14%
lndustriaI Wood Burning, air....................................            26.4            27.6             -5%
Bleached Pulp and Paper Mills, water............................           356.0            19.5             95%
Cement Kilns (non-hazardous waste burning)......................            13.7            17.8            -30%
Sewage Sludge Incineration, air.................................             6.1            14.8           -143%
EDC/Vinyl chloride, air.........................................              NA            11.2              NA
Oil-fired Utilities, air........................................            17.8            10.7             40%
Crematoria, air.................................................             5.5             9.1            -65%
Unleaded Gasoline, air..........................................             3.6             5.6            -56%
Hazardous Waste Incineration, air...............................             5.0             5.8            -16%
Lightweight ag kilns, haz waste, air............................             2.4             3.3            -38%
Commercially Marketed Sewage Sludge, land.......................             2.6             2.6              0%
Kraft Black Liquor Boilers, air.................................             2.0             2.3            -15%
Petrol Refine Catalyst Reg., air................................            2.24            2.21              1%
Leaded Gasoline, air............................................            37.5             2.0             95%
Secondary Lead Smelting, air....................................            1.29            1.72            -33%
Paper Mill Sludge, land.........................................            14.1             1.4              90
Cigarette Smoke, air............................................             1.0             0.8             20%
EDC/Vinyl chloride, land........................................              NA            0.73              NA
Primary Copper, air.............................................             0.5             0.5              0%
EDC/Vinyl chloride, water.......................................              NA            0.43              NA
Boiler/industrial furnaces......................................            0.78            0.39             50%
Tire Combination, air...........................................            0.11            0.11              0%
Drum Reclamation, air...........................................             0.1             0.1              0%
Carbon Reactivation Furnace,air.................................            0.08            0.06             25%
    Totals......................................................          13,998           3,255             77%
Percent Reduction from 1987 to 1995.............................  ..............  ..............             77%

----------------------------------------------------------------------------------------------------------------
The ``Database of Sources of environmental Releases of Dioxin-Like Compounds in the United States'' EPA/600/C-O1/
  O12.


                                 ______
                                 

                       FedEx Express,    
                                  Legal Department,
                                      3620 Hacks Cross Rd.,
                                        Memphis, TN, June 20, 2003.

The Honorable Richard G. Lugar,
Chairman, United States Senate,
Senate Foreign Relations Committee
Washington, DC.

The Honorable Joseph R. Biden, Jr.
United States Senate,
Washington, DC.

Re: The Montreal Convention and The Hague Protocol

    Dear Mr. Chairman and Senator Biden:

    On behalf of Federal Express, I would like to express our support 
for the United States Senate advice and consent to ratification of two 
aviation treaties pending before the Committee, the Montreal Convention 
for the Unification of Certain Rules for International Carriage by Air 
and The Hague Protocol to Amend the Convention for the Unification of 
Certain Rules Relating to International Carriage by Air. Federal 
Express believes that the ratification of these important treaties is a 
prudent and necessary step in the evolution of air transportation. Once 
ratified, they will bring the law regarding the international 
transportation of cargo into step with the realities of the modem 
shipping industry.
    Federal Express anticipates numerous benefits to the shipping 
industry once the Montreal Convention is ratified and gains wide 
acceptance. One of the first benefits will be the simplification of the 
notice requirement to the shipper of the Convention's applicability, 
which is a significant improvement over the Warsaw Convention. The 
Montreal Convention also provides for the use of electronic shipping 
documents, and also allows carriers to refuse to accept cargo for 
carriage if use of electronic forms is impossible. These changes 
acknowledge the technological advancements made in the transportation 
industry since the Warsaw Convention was finalized in 1929.
    The Montreal Convention also clears up several issues that have 
troubled the air cargo transportation industry. In particular, the 
Convention clarifies that the consignor is responsible for the 
particulars of documentation of the air waybill, even where the person 
acting on behalf of the consignor is an agent of the carrier. The 
Montreal Convention also rectifies one of the most confusing issues for 
cargo carriers regarding loss or damage occurring off airport property. 
Article 18 allows a carrier to substitute another mode of carriage for 
carriage by air, but the substitute transportation is deemed to be 
carriage by air and subject to the Convention. This provision should 
rectify the uncertainties surrounding loss of or damage to cargo 
outside of airport boundaries.
    The comparative negligence scheme for cargo will also be expanded 
by the new Convention. A carrier's liability will be limited to the 
extent that damage to the cargo resulted from inherent defects, quality 
or vice of the cargo, defective packing, act of war or of a public 
authority. Presently, a carrier may limit its liability only if the 
damage to the cargo results solely from the above listed acts.
    Some of the other improvements found in the Montreal Convention 
include providing an unbreakable limit of liability for cargo carriers 
equal to 17 Special Drawing Rights per kilogram; an improved defense 
for delayed cargo when the carrier proves it took all measures that 
could reasonably be required to avoid the damage; a provision for 
factoring in inflation every five years for cargo and baggage liability 
limitations; and a prohibition against the recovery of punitive, 
exemplary and non-compensatory damages against cargo carriers.
    Ratification of The Hague Protocol will in turn resolve uncertainty 
concerning the application of the rules of the Protocol that are 
incorporated by reference into Montreal Protocol No. 4, which entered 
into force for the United States in 1999. A recent judicial decision 
called into question the applicability of those rules, and that 
question will be resolved by ratification of The Hague Protocol. 
Federal Express is grateful that the Committee is also considering this 
instrument for advice and consent to ratification.
    Federal Express strongly supports the advice and consent to 
ratification of these treaties by the United States Senate. The new 
provisions found in the Montreal Convention will modernize the current 
Warsaw Convention regime while improving certain aspects of cargo 
transportation by clarifying issues that have confused both carriers 
and shippers for decades. If our company can be of assistance to your 
Committee by providing further information, please do not hesitate to 
contact me.
            Sincerely,
                                 Tomas F. Donaldson
                         Vice President, Regulatory Affairs
                                        Federal Express Corporation

                                 ______
                                 

   Prepared Statement of Global Threats Program, World Wildlife Fund

                               World Wildlife Fund,
                                1250 Twenty-Fourth St., NW,
                                     Washington, DC, June 16, 2003.

Honorable Richard Lugar, Chairman,
Senate Foreign Relations Committee,
Dirksen Senate Office Building, Room 450,
Washington, DC.

Re: June 17, 2003 Hearing on Stockholm POPs Convention and Other 
Treaties

    Dear Mr. Chairman,

    In the context of the scheduled June 17 Committee hearing on 
treaties available for ratification, and on behalf of 1.2 million 
Americans who are members of the World Wildlife Fund, I would like to 
express our support for the ratification of the Stockholm and Rotterdam 
Conventions concerning toxic chemicals. These two important 
environmental agreements have the potential to contribute significantly 
to making this world a safer place for people and wildlife.
    At the same time, I would like to draw to the Committee's attention 
our serious concern regarding the adequacy of Stockholm Convention-
related legislative proposals put forward by the administration, and to 
request that the Committee seek assurances from the administration that 
it will cooperate in the development of effective implementing 
legislation for this very critical treaty.
    Before joining WWF, I was Deputy Assistant Secretary for 
Environment and Development at the U.S. Department of State, in which 
capacity I led the U.S. delegation for the negotiation of the Stockholm 
Convention. I have attached for the Committee's consideration a copy of 
my testimony presented on May 9, 2002, before the Senate Committee on 
Environment and Public Works. The testimony outlines the significant 
benefits that the United States will derive from the elimination of 
persistent organic pollutants (POPs) chemicals under the Stockholm 
Convention, and addresses a number of key issues that will determine 
the effectiveness of the Convention's implementation.
    Principal among these issues is the process for adding chemicals to 
the Convention. The Convention contains a carefully worked out 
scientific and institutional process for adding chemicals that are 
determined to have POPs characteristics and therefore warrant global 
concern. This process fully protects the rights of parties to challenge 
or even reject the addition of any particular chemical. It is critical, 
in ratifying the Convention, to ensure that the United States, as a 
party, is fully capable of regulating chemicals that may be added to 
the POPs list. Without the enactment of implementing legislation 
including expedited provisions allowing the appropriate regulation of 
new POPs chemicals, the United States will not be able to fully carry 
out its obligations under the treaty. However, the administration's 
approach to this issue has been one of confusion and crossed signals. 
Advice and consent to ratification would, in WWF's view, be a hollow 
victory if this situation is not remedied.
    During the past twelve months, WWF and other environmental and 
public health NGOs have met on several occasions with representatives 
of the American Chemistry Council (ACC) and Bush Administration to 
discuss differences regarding implementing legislation. NGOs and ACC 
representatives were able to reach substantial common ground regarding 
the information that should be taken into account, domestically, for 
chemicals being considered for inclusion in the Stockholm Convention. 
Regrettably, though, there has been very little progress in agreeing on 
the ``adding mechanism'' that would be the basis, domestically, for 
deciding whether to regulate a chemical once it is added to the 
Convention.
    We applaud Senators Chafee and Jeffords for their perseverance and 
hard work in striving to craft a legislative text that addresses the 
adding mechanism issue effectively. Unfortunately, efforts to include 
an effective adding mechanism that gives substantial weight to the 
international listing decision have been delayed and impeded by 
interventions of administration officials. The initial implementing 
language proposed last year by the White House would have left out the 
adding mechanism altogether. Proposals put forward earlier this year, 
coordinated by the White House's Office of Management and Budget, risk 
bogging down that mechanism in lengthy and cumbersome cost-benefit 
related proceedings that would make it extremely difficult if not 
impossible for EPA to take action when POPs are added to the treaty. 
Earlier this month, the administration, chemical industry, and NGO 
representatives each submitted comments on these issues to Senator 
Chafee's Subcommittee on Superfund and Waste Management as a basis for 
arriving at a more acceptable legislative text on this critical 
element. We look forward to reviewing revised legislative text as soon 
as it is available.
    A timely and effective mechanism to allow the appropriate 
regulation of POPs chemicals as they are added to the Convention is in 
our view the most important component of the POPs treaty implementing 
legislation. We therefore urge Members of the Foreign Relations 
Committee to request explicit assurances from the administration that 
it will support the enactment of effective implementing legislation, 
including provisions for the expeditious regulation of new POPs 
consistent with the following principles:

          (1) The domestic regulatory process should promote timely 
        decisions by the United States on new chemicals that are added 
        to the Stockholm Convention. The legislation should seek to 
        avoid redundancy and unnecessary delays whenever possible. It 
        should facilitate, through the rulemaking process, the 
        development of a U.S. position on these chemicals that is in 
        sync with the scope and timing of the Convention's Article 8 
        international process. This will avoid the necessity of a de 
        novo domestic review and scientific determination after the 
        Conference of Parties (COP) decides to add a chemical; and

          (2) The COP listing process and decision should provide the 
        default option for domestic action, unless the EPA 
        Administrator finds that the COP has erred and the chemical in 
        question is not likely, as a result of its long-range 
        environmental transport, to lead to significant adverse human 
        health and/or environmental effects such that global action is 
        warranted.

    We would be happy to provide further assistance to Members of this 
Committee or staff in your consideration of advice and consent action 
on the Stockholm and Rotterdam Conventions.
            Sincerely,
                                   Brooks B. Yeager
                     Vice President, Global Threats Program
                                                World Wildlife Fund

[Attachment.]

 Legislation to Implement the 2001 Stockholm Convention, including The 
  Persistent Organic Pollutants (POPs) Implementation Act of 2002 (S. 
                                 2118)

testimony of brooks b. yeager, vice president for global threats, world 
 wildlife fund, before the committee on environment and public works, 
                   united states senate--may 9, 2002
    Mr. Chairman and Members of the Committee:
    On behalf of World Wildlife Fund's 1.2 million members, thank you 
for the opportunity to testify on the implementing legislation for the 
Stockholm Convention on Persistent Organic Pollutants (POPs). Known 
worldwide by its panda logo, World Wildlife Fund (WWF) is dedicated to 
protecting the rich biological diversity on which the prosperity and 
survival of human societies depends. As the leading privately supported 
international conservation organization in the world, WWF has sponsored 
conservation work in more than 100 countries since 1961.
    For the record, I am Brooks Yeager, Vice President for Global 
Threats at WWF, where I supervise campaigns to conserve global forests 
and ocean resources, to avert damage to the global environment from 
climate change and toxic pollution, and to ensure the environmental 
sustainability of global commerce. Before joining WWF, I served as the 
Deputy Assistant Secretary for Environment and Development at the U.S. 
State Department. At State I was responsible for the development and 
negotiation of U.S. Government policy in a range of bilateral and 
global environmental discussions and undertakings. These included the 
Convention on Biological Diversity (CBD), the CBD Biosafety Protocol, 
the Global Environment Facility, the International Coral Reef 
Initiative (ICRI), the International Tropical Timber Organization, and 
United Nations forest discussions.
    I also served as the United States' lead negotiator for the 
Stockholm POPs Convention. We are here today to discuss the 
implementing legislation for this ground-breaking treaty. With your 
permission, I will try to distinguish the views I express on behalf of 
WWF from those observations I can make from my involvement on behalf of 
the U.S. Government in the Convention's development.
    The Stockholm POPs Convention represents the most important effort 
by the global community, to date, to rein in and ultimately halt the 
proliferation of toxic chemicals. It's an agreement that is at once 
ambitious, comprehensive, and realistic. The treaty targets some of the 
world's most dangerous chemicals--POPs include pesticides such as 
chlordane, industrial chemicals such as PCBs, and by-products such as 
dioxins.
    POPs pose a particular hazard because of four characteristics: they 
are toxic; they are persistent, resisting normal processes that break 
down contaminants; they accumulate in the body fat of people, marine 
mammals, and other animals and are passed from mother to fetus; and 
they can travel great distances on wind and water currents. Even small 
quantities of POPs can wreak havoc in human and animal tissue, causing 
nervous system damage, diseases of the immune system, reproductive and 
developmental disorders, and cancers.
    Persistent organic pollutants are a threat to human health, 
wildlife, and marine and terrestrial ecosystems in the United States 
and around the world. From Alaska to the Great Lakes to Florida, 
Americans face an insidious but largely invisible threat from POPs 
chemicals. Despite more than two decades of U.S. efforts to control 
POPs pollution, POPs used and released in other countries--often 
thousands of miles from our borders--continue to contaminate our lands 
and waterways, the food we eat, and the air we breathe.
    Our government made a concerted effort, starting not long after the 
publication of Rachel Carson's pathbreaking ``Silent Spring,'' to 
eliminate the production and use of known POPs chemicals in the United 
States--yet we are still vulnerable to POPs pollution. Our environment, 
wildlife, and human health continue to be affected by POPs from 
unremediated contaminated sites at home and the production and use of 
POPs elsewhere in the world. This last fact is central to understanding 
the United States' strong national interest in the success of this 
global effort to reduce and eliminate POPs. POPs' mobility in air and 
water currents, for example, makes possible their presence along with 
metals and other particulates in incursions of Saharan dust into the 
continental United States. African dust is the dominant aerosol 
constituent in southern Florida's dense summer hazes. Similarly, one 
potential source of DDT in some salmon returns to Alaska rivers is its 
extensive use in Asian agriculture. A global mechanism to reduce these 
``chemical travelers without passports'' is necessary, urgent, and very 
much in our national interest.
    [Note: ``A Toxic Hot Spots'' map submitted with this testimony will 
be referred to in relation to statements made in the prior paragraph.]
    The Stockholm POPs Convention was negotiated by more than one 
hundred and twenty governments over a four-year period. As the head of 
the U.S. delegation, I was responsible for developing the United 
States' negotiating objectives and strategies, and for assuring that 
our national interest, positions, and requirements were reflected in 
the final text. Development of the U.S. position was accomplished 
through a thorough, not to say exhaustive, domestic process involving 
regular consultations with seven domestic agencies, industry, the 
environmental and public health communities, native American 
representatives, and various interested state governments, including 
the State of Alaska.
    This careful process of developing the U.S. negotiating position is 
one of the reasons, I believe, that President Bush's decision to sign 
the Stockholm Convention last April received such broad support. WWF 
and many others--including the chemical industry, environmental and 
public health organizations and members of Congress on both sides of 
the aisle--applauded the President's Rose Garden announcement. We are 
pleased that the President has decided to send the treaty package to 
the Senate for ratification.
    In fact, both industry and environmental representatives made 
important contributions to the final product. I would like to note in 
particular the constructive roles played by Mr. Michael Walls and Mr. 
Paul Hagen of the American Chemistry Council (ACC). A letter to 
Governor Whitman on February 26, 2002, from Mr. Frederick Webber, ACC's 
President and CEO, noted that,

        ACC strongly recommends that the Administration seek the U.S. 
        Senate's advice and consent to ratification as soon as 
        possible. We believe it is important for the United States to 
        continue its leadership role in the global effort to address 
        the risks posed by POPs emissions, and believe that the United 
        States should make every effort to be among the first 50 
        countries ratifying the Convention.

    WWF looks forward to working with our environment and public health 
NGO colleagues, indigenous peoples, the ACC and other business groups, 
and other stakeholders in moving forward the POPs implementing 
legislation and treaty ratification packages as expeditiously as 
possible.
    The POPs treaty represents a significant and innovative 
breakthrough in global chemicals management, calling for concrete steps 
to restrict or phase out dangerous chemicals rather than relying on 
expensive, end-of-pipe measures such as pollution scrubbers and 
filters. The treaty's ambitious control obligations were developed with 
enough flexibility that they can be accomplished largely within the 
established U.S. statutory and regulatory structure. As we will discuss 
today, only limited adjustments are needed to the Federal Insecticide, 
Fungicide, and Rodenticide Act (FIFRA) and the Toxic Substances Control 
Act (TSCA).
    In Stockholm in May 2001, the POPs treaty was signed by 91 
governments and ratified by two. Already those numbers have climbed to 
128 signatories and the equivalent of 7 Parties (six ratifications and 
one accession) as of May 1, 2002. WWF is working with governments 
around the world in the hope of generating the required 50 
ratifications by the World Summit on Sustainable Development in late 
August in Johannesburg, South Africa, so that the treaty can enter into 
force before the end of 2002. This is an ambitious target, but one 
fully justified by the urgency of the problem. WWF believes that the 
Johannesburg Summit presents a significant opportunity for American 
leadership in the global effort to eliminate POPs, as well as in 
broader issues affecting the global environment and human development. 
Achieving Senate advice and consent for ratification within the next 15 
weeks is admittedly a much-accelerated timeframe, but with energy and 
determination we believe this is achievable. Enacting implementing 
legislation in such a period may be even more challenging, but we urge 
you to try and do so.
    WWF extends heartfelt thanks and congratulations to Senator 
Jeffords and his staff on the Senate Environment and Public Works 
Committee for introducing sound, forward-thinking legislation to 
implement the POPs treaty.
               overview of the stockholm pops convention
    Before delving into the specifics of the implementing legislation, 
a brief overview of the structure and mechanisms of the Stockholm POPs 
Convention may be in order. The POPs treaty is designed to eliminate or 
severely restrict production and use of POPs pesticides and industrial 
chemicals; ensure environmentally sound management and chemical 
transformation of POPs waste; and avert the development of new 
chemicals with POPs-like characteristics.
    Eliminating intentionally produced POPs. The agreement targets 
chemicals that are detrimental to human health and the environment 
globally, starting with a list of 12 POPs that includes formerly used 
pesticides, dioxins, and PCBs. Most of the pesticides are slated for 
immediate bans once the treaty takes effect. A longer phase-out (until 
2025) is planned for certain PCB uses. With regard to DDT, the 
agreement sets the goal of ultimate elimination, with a timeline 
determined by the availability of cost-effective alternatives for 
malaria prevention. The agreement limits use in the interim to disease 
vector control in accordance with World Health Organization guidelines, 
and calls for research, development, and implementation of safe, 
effective, and affordable alternatives to DDT.
    Ultimately eliminating byproduct POPs. For dioxins, furans, and 
hexachlorobenzene, parties are called on to reduce total releases with 
the goal of their continuing minimization and, where feasible, ultimate 
elimination. The treaty urges the use of substitute or modified 
materials, products, and processes to prevent the formation and release 
of by-product POPs.
    Incorporating precaution. Precaution, including transparency and 
public participation, is a guiding approach throughout the treaty, with 
explicit references in the preamble, objective, provisions for adding 
POPs, and determination of best available technologies.
    Disposing of POPs wastes. The treaty includes provisions for the 
environmentally sound management and disposal of POPs wastes (including 
stockpiles, products, articles in use, and materials contaminated with 
POPs). The POP content in waste is to be destroyed, irreversibly 
transformed, or, in very limited situations, otherwise disposed of in 
an environmentally sound manner in coordination with Basel Convention 
requirements.
    Controlling POPs trade. Trade in POPs is allowed only for the 
purpose of environmentally sound disposal or in other very limited 
circumstances where the importing State provides certification of its 
environmental and human health commitments and its compliance with the 
POPs treaty's waste provisions.
    Allowing limited and transparent exemptions. Most exemptions to the 
treaty requirements are chemical-and country-specific. There are also 
broader exceptions for use in laboratory-scale research; for small 
quantities in the possession of an end-user; and for quantities 
occurring as unintentional trace contaminants in products. Notification 
procedures and other conditions apply to exemptions for POPs as 
constituents of manufactured articles and for certain closed-system 
site-limited intermediates.
    Funding commitments enabling all countries to participate. The 
ability of all countries to fulfill their obligations will be integral 
to the treaty's success. The treaty contains a sensible and realistic 
financial mechanism, utilizing the Global Environment Facility (GEF), 
through which donor countries have committed to assisting developing 
countries and transitional economies in meeting their obligations under 
the treaty. Adequacy, predictability, and timely flow of funds are 
essential. The treaty calls for regular review by the Conference of 
Parties of both the level of funding and the effectiveness of 
performance of the institutions entrusted with the treaty's financial 
operations.
           the pops treaty as a careful balance of interests
    In my view, Mr. Chairman, this is a solid and carefully crafted 
treaty. But it is also a treaty that reflects a careful balance of 
interests achieved through negotiation and compromise. The U.S. 
interest, as we articulated it during the negotiations, was to achieve 
an ambitious treaty that would address the global environmental damage 
caused by POPs, but do so in a way that would be practical, 
implementable, financially efficient, and consistent with the 
fundamental structure of our national approach to chemical regulation.
    Other countries had different interests, some similar, some at 
variance with ours. The developing countries were neither willing nor 
able to invest in what to them was a new environmental priority such as 
POPs control and remediation without financial and technical assistance 
from the developed world. The G-77 negotiators insisted throughout the 
negotiation on a new financial mechanism, specific to the Convention, 
with mandatory assessments. The establishment of the GEF as the 
Convention's interim financial mechanism represents a genuine 
compromise in which the donor countries committed to provide additional 
financial resources, but through a channel with a proven track record 
and one over which donor countries exert significant control.
    Similarly, the EU and a number of other countries insisted early in 
the negotiations on a framework for regulating byproducts such as 
dioxins based on quantitative baselines and mandatory percentage 
reductions. The United States and some developing countries considered 
this unrealistically rigid, in view of the highly varying levels of 
knowledge regarding dioxin sources in various national contexts and the 
even higher variation among countries in the capacity to address such 
sources. The framework for dioxin regulation which emerged sets an 
ambitious goal of ``ultimate elimination . . . where feasible,'' but 
seeks to reach this goal through a nationally-driven process of 
inventory, planning, and appropriate regulation, under guidance from 
the Convention. This too was a genuine compromise that should produce 
real progress in dioxin source reduction in the coming years.
    The process of balancing interests and finding a unified way 
forward was critical to developing a consensus as to how to add new 
POPs chemicals to the treaty over time. All parties clearly recognized 
that the Convention could not be successful if it were limited solely 
to the 12 chemicals already on the POPs list. All parties recognized, 
and stated, that the Convention was intended to be dynamic rather than 
static. But the question of what scientific and institutional process 
to use in adding chemicals to the list was fraught with difficulties 
and misunderstandings.
    For the United States, it was critical that this process be 
scientifically-driven and not subject to political whim. Some in the 
U.S. feared that other countries might be almost cavalier in adding 
chemicals to the list, and that such an approach would distort the 
treaty and distract parties from the strong efforts needed to deal with 
the chemicals already on the list.
    For some in the EU and elsewhere, it was critical that the process 
for adding chemicals not be subject to endless procedural roadblocks. 
This concern reflected an anxiety that the affected industries or 
governments might use procedural challenges to block the addition of 
chemicals that would legitimately qualify for the list on scientific 
grounds, and that this approach would impede the effectiveness of the 
Convention over time.
    The procedure for adding new chemicals which was finally adopted 
is, once again, a genuine compromise, but one which, in my view, 
successfully protects the U.S. interest in every respect. It may be 
useful to give a short account of the negotiations on this important 
issue.
    First, the U.S. negotiating team insisted on, and successfully 
negotiated, the scientific criteria according to which a nominated 
chemical would be evaluated. These criteria are contained in Annex D of 
the Convention. Then we negotiated the process through which these 
criteria should be applied, by a scientific screening committee (the 
so-called POPs Review Committee or ``POPRC''), working under the 
supervision of the Conference of the Parties (the COP). Finally, we 
negotiated the terms under which the COP would review the 
recommendation of this scientific group, the conditions under which the 
COP could make a decision to add or reject a chemical, and the 
procedures for party governments to accept or reject the COP's 
decision.
    The process which emerged is described in more detail in our 
substantive discussion of the new chemicals provisions. Let me just say 
here that it offers the United States the safeguards of rigorous 
science, a careful review procedure, a high institutional threshold for 
COP decisions to add chemicals, and the right to reject the addition of 
a new chemical, if appropriate. In addition, this compromise also 
successfully resolved, at least in this context, the long-running 
controversy between the United States and the European Union on the 
subject of precaution, and did so in a way which may have useful 
applications in the future.
   congressional action needed to implement the stockholm convention
    The Congressional action necessary to implement the POPs treaty 
must come in two areas--financial support and implementing legislation.
POPs Financial Support
    Negotiators agreed to request that the Global Environment Facility 
serve as the treaty's principal financial mechanism, on an interim 
basis. It is WWF's strong view that the GEF must be fully funded in 
order to provide sufficient resources for developing countries to begin 
to eliminate POPs. In order to take on the added responsibility of 
assisting the global effort to eliminate POPs without robbing its other 
critical priorities, the GEF needs to be replenished at a higher level. 
It will take American leadership to do this. The Administration's 
$177.5 million FY03 request for the GEF, including paying a portion of 
U.S. arrears, is an important first step towards this goal. We urge the 
Committee to work with the Appropriations Committee to fully fund the 
Administration's $177.5 million request, and to allow the President 
sufficient flexibility within the request to position the United States 
to lead efforts to replenish the GEF at the level necessary.
POPS Implementing Legislation
    As WWF has not had an opportunity to review the official 
transmission from the Administration, our comments will be directed 
primarily to the Chairman's bill, S. 2118. We would be happy to submit 
comments on the Administration's bill at a later date.
    S. 2118 amends FIFRA and TSCA (the first amendments to TSCA since 
its enactment in 1976) to implement both the Stockholm POPs Convention 
and the Protocol on POPs to the Convention on Long-Range Transboundary 
Air Pollution (LRTAP POPs Protocol). My comments will address primarily 
the implementing legislation for the Stockholm Convention.
    S. 2118 would provide EPA with the authority to prohibit 
manufacture of the twelve POPs identified in the Stockholm Convention 
annexes as well as other POPs subsequently added to the Convention. The 
legislation also includes related provisions calling on the National 
Academy of Sciences to develop new methodologies for screening future 
POPs candidates.
    First and foremost, I would like to address the provisions for 
adding new chemicals to the treaty. Speaking both as the lead U.S. 
negotiator and in my capacity for WWF, I want to emphasize the 
importance of including the targeted statutory amendments needed to add 
other chemicals to the treaty.
    The international community envisioned a dynamic instrument that 
could take into account emerging scientific knowledge about chemicals 
beyond the initial 12. Integral to the treaty is a process for 
nomination, science-based assessment (including risk profiles and risk 
assessments), and decision-making that involves both the subsidiary 
POPs Review Committee and the Conference of Parties before a substance 
can be added to the treaty's annexes. Unless this element of the treaty 
is considered to be self-executing, the legal mechanism to eliminate 
the production, use, and export of new POPs must be reflected in the 
implementing legislation. We applaud Senator Jeffords for including in 
his bill the critical amendments to TSCA and FIFRA to regulate 
subsequent additions.
    WWF and other environmental and public health organizations stand 
alongside the chemical industry in voicing our support for full 
implementation. Again to quote from the American Chemistry Council's 
letter to Governor Whitman,

        ACC believes it is possible to craft appropriate amendments to 
        TSCA and FIFRA to reflect the treaty additions process. . . . 
        Although we have not yet seen the Administration's draft 
        implementing legislation, we are confident that matters 
        concerning the substance selection process can be addressed as 
        necessary in the course of the legislative process.

    It is our understanding that both the Jeffords bill and the 
Administration proposal are based on a legislative proposal crafted by 
EPA and other U.S. Government agencies last summer, but the 
Administration removed these essential provisions for adding new POPs 
from its final implementing package.
    The Administration's proposal apparently envisions a case-by-case 
revision of domestic legislation for each POP candidate beyond the 
initial 12. Such an approach risks politicizing decisions that would 
otherwise be based on sound science. Moreover, we find it hard to 
believe that Congress will be willing or able to repeatedly reopen 
domestic laws such as TSCA and FIFRA which have rarely if ever been 
amended.
    In our view, as I have already mentioned, the Convention as 
negotiated provides the U.S. with a great deal of flexibility in 
deciding whether and how to take domestic action against future POPs:

   The international selection process involves input from all 
        countries that are Parties to the Convention: Article 8 of the 
        Convention provides for the evaluation and addition of 
        chemicals beyond the initial 12. Upon entry into force, the 
        Conference of the Parties (COP) will establish a Persistent 
        Organic Pollutants Review Committee (POPRC). Parties will 
        submit chemical nominations to the POPRC, which will evaluate 
        them based on agreed scientific criteria including persistence, 
        bioaccumulation, long-range transport, and toxicity. The POPRC 
        must prepare a draft risk profile in accordance with Annex E, 
        to be made available for input from all Parties and observers. 
        The POPRC will then make recommendations that must be approved 
        by the entire Conference of the Parties before a nominated 
        chemical can be added to the treaty as a binding amendment.

   The Convention does not automatically obligate the U.S. to 
        eliminate each new POP that is added internationally: Under 
        Article 22(3) of the Convention, COP-agreed amendments to add 
        new chemicals become binding upon all Parties, subject to the 
        opportunity to ``opt out'' of such obligations within one year. 
        However, there exists another safeguard under Article 25(4), 
        which was proposed by the U.S., allowing a Party to declare 
        when ratifying the Convention that it will be bound by new 
        chemical amendments only if it affirmatively ``opts in'' via a 
        separate, subsequent ratification process. The State Department 
        has indicated that the U.S. will take advantage of the ``opt 
        in'' provision, enabling the Senate to give its advice and 
        consent to the addition of each new POP in the future.

    Including these and other safeguards in the POPs treaty was a major 
objective of U.S. negotiators, and one which I believe was fully 
achieved. At the end of the long, hard concluding week of negotiations 
in Johannesburg in December 2000, I can say that the U.S. negotiators 
felt extremely pleased with the balance of the treaty, and were fully 
satisfied with the particular provisions for the addition of new 
chemicals. In my view, the Administration's reluctance to include 
authority to regulate new POPs--the so-called 13th POP, and beyond--
cannot be justified by any need to add to an already elaborate system 
of protections. It is also my view that the absence of such provisions 
jeopardizes U.S. participation in the Convention, and will injure the 
credibility of the United States in this context.
    We recognize that broad options exist for regulating additional 
POPs under U.S. law. Two major options can be considered for amending 
TSCA and FIFRA to deal with future POPs under the Convention. The first 
option would amend these statutes to allow for automatic regulation of 
new POPs once the United States ``opts in'' to the corresponding treaty 
amendments. This option is preferred by environmental and public health 
NGOs, given the other existing safeguards described above. The second 
option, according to Administration officials, would provide that a 
``rebuttable presumption'' be given to the COP's decision on a new POP, 
while preserving the right to make a persuasive case that modified 
controls are necessary.
    From the point of view of an environmental organization, in view of 
the safeguards built into the treaty mechanism itself, it would make 
sense to make regulation of newly-listed POPs automatic, triggered by 
the government's decision to ``opt in'' to the listing under Article 
25(4). While the rebuttable-presumption language contained in S. 2118 
offers the additional reassurance of a domestic process of notice and 
comment, which may be attractive for some interests, we would note that 
FIFRA's special review and cancellation process, if challenged, 
generally takes at least five years and often more than 10. This is 
clearly far too long a period to revisit, via the procedures set forth 
in domestic regulations that govern the cancellation process, a 
scientific conclusion and policy decision already taken by the 
government in its role as a party to the Convention.
    One solution to this dilemma might be to amend the cancellation 
process so that when a pesticide is listed as a POP, or in the judgment 
of EPA deserves to be listed as a POP, the EPA's evidentiary burden 
would be restricted to proving that the basic POPs listing criteria 
apply--thereby precluding a full FIFRA cost-benefit analysis. 
Administrative review would be limited to the data and scientific 
judgments supporting EPA's conclusion that the POPs criteria apply to a 
given pesticide.
    In addition, it is important that the legislation ensure the 
elimination of any POPs pesticide--whether registered for a formulated 
end-use product or a technical material--to enable U.S. compliance with 
obligations under the POPs treaty. In other words, each of a 
pesticide's registrations--the one covering ``technical material,'' 
i.e., the pure active ingredient, and the second for ``end-use 
products'' formulated with the addition of inert ingredients 
(surfactants, emulsifiers, carriers, etc.)--should count as ``existing 
registrations'' even if the pesticide is not being actively marketed or 
used in the United States.
    In step with the cancellation action (but lagged by about two years 
to allow channels of trade to clear), whenever a pesticide is listed as 
a POP, EPA should be directed to phase out all tolerances covering food 
uses of the pesticide. Likewise, listing as a POP should be enough to 
trigger EPA revocation of any ``import tolerances'' or exemptions. 
Revocation of a tolerance is the only tool the EPA has to alter how 
high-risk pesticides are used outside U.S. borders--and to protect 
human health inside the United States. Tolerances set in the United 
States can serve as de facto global standards because so many countries 
depend on access to the U.S market and because changes in U.S. 
tolerance levels often trigger changes in the international Maximum 
Residue Limits set by Codex.
    WWF is undertaking a thorough assessment of these issues as 
presented in S. 2118, with the intent of assisting the Committee in 
assuring that any changes to FIFRA and TSCA effectively and efficiently 
carry out the aims of the POPs treaty. We would be happy to share that 
analysis upon completion.
Research Program to Support POPs Convention
    WWF is pleased to see that S. 2118 calls for a program of 
scientific research to assist the U.S. Government in meeting its 
obligations under the POPs treaty. The bill directs the National 
Academy of Sciences to review scientific models and testing methods for 
screening candidate POPs; to propose alternative designs for a global 
monitoring program on persistent and bioaccumulative substances; and to 
recommend priority POPs chemical substances or mixtures for possible 
nomination to the POPRC.
    WWF strongly supports these provisions, which are described in 
Section 107 of the bill. While not essential to the legislation 
amending TSCA and FIFRA, the research provisions are a valuable 
complement to POPs treaty implementation. They will help ensure that 
proposals for subsequent additions to the treaty target the worst 
offenders and are supported by sound testing methods, risk assessment 
models, and environmental monitoring techniques. Carrying out this 
program of rigorous scientific research on POPs places the United 
States in a strong position not only to nominate the most appropriate 
candidates for future POPs but also to question any proposed listings 
that are based on misguided information or inaccurate data.
    The Chairman's bill also very appropriately calls upon the 
Administrator of EPA to submit no later than 90 days after enactment of 
S. 2118 the agency's final exposure and human health reassessment of 
2,3,7,8-Tetrachlorodibenzo-p-Dioxin (TCDD) and related compounds, which 
are among the most dangerous POPs. In this regard, less than two weeks 
ago the U.S. General Accounting Office released a report, 
``Environmental Health Risks: Information on EPA's Draft Assessment of 
Dioxins.'' In its transmittal letter, the GAO notes that, according to 
EPA officials, the assessment will conclude that (p. 1)

        dioxins may adversely affect human health at lower exposure 
        levels than previously thought and that most exposure to 
        dioxins occurs from eating such dietary staples as meats, fish, 
        and dairy products, which contain minute traces of dioxin. 
        These foods contain dioxins because animals eat plants and 
        commercial feed, and drink water contaminated with dioxins, 
        which then accumulate in animals' fatty tissue.

    The GAO report is significant in that it endorses the work 
undertaken thus far by EPA and provides a solid basis for the long-
awaited reassessment to be expeditiously completed and released. 
Release of the dioxin reassessment will contribute important 
information relevant to actions that may be required to address dioxins 
and other unwanted byproducts under the POPs treaty, measures that 
would benefit citizens in the United States and other countries.
LRTAP POPs Protocol
    WWF also supports the inclusion of implementing legislation for the 
Economic Commission for Europe's Long-Range Transboundary Air Pollution 
(LRTAP) POPs Protocol. An outgrowth of scientific findings linking 
sulfur emissions in continental Europe to acid deposition in 
Scandinavian lakes, LRTAP was the first legally-binding agreement to 
address air pollution problems on a broad regional basis. Parties to 
LRTAP include the United States, Canada, and Western and Eastern 
European countries including Russia.
    The LRTAP POPs Protocol--the first legally-binding multi-lateral 
instrument on POPs--was added in 1998. It targets 16 substances 
including the 12 POPs chemicals plus chlordecone, hexabromobiphenyl, 
and hexachlorocyclohexane (including lindane). It also includes 
obligations to reduce emissions of polycyclic aromatic hydrocarbons 
(PAHs) which--as with other byproduct chemicals--do not require changes 
to TSCA or FIFRA. Although the LRTAP POPs Protocol includes more 
chemicals than the POPs treaty, it is not a replacement. LRTAP deals 
with transmission of POPs through only a single medium (air); confines 
its reach to northern, largely European countries; and does not address 
many of the issues involving developing countries.
    To date, eight countries have ratified the LRTAP POPs Protocol out 
of 15 needed for entry-into-force. WWF would welcome U.S. participation 
in these regional efforts. Given POPs' global reach, however, a 
realistic and comprehensive solution needs to include developing 
countries as well. The United States and other donor countries must 
assist the developing world in coming to grips with the POPs problem--
and the global POPs treaty is the ideal vehicle through which to do 
this.
Rotterdam Convention on Prior Informed Consent
    We are pleased to see that the Administration has bundled the 
Rotterdam PIC Convention in its implementing legislation alongside the 
POPs treaty and the LRTAP POPs Protocol. The PIC treaty alerts 
governments as to what chemicals are banned or severely restricted, by 
which governments, and for what reasons. The cornerstone of the treaty 
is prior informed consent, a procedure that enables Parties to review 
basic health and environmental data on specified chemicals and to 
permit or refuse any incoming shipments of those chemicals. Each 
Party's decisions are disseminated widely, allowing those countries 
with less advanced regulatory systems to benefit from the assessments 
of those with more sophisticated facilities. Instituting PIC is a 
critical first step in the process of improving chemical management 
capacity.
    The PIC treaty includes provisions for:

   alerting countries when there is an impending import of a 
        chemical which has been banned or severely restricted in the 
        exporting country;

   labeling hazards to human health or the environment; and

   exchanging information about toxicological findings and 
        domestic regulatory action.

    Ultimately the Rotterdam Convention will replace the voluntary PIC 
procedure, which has been operated by UNEP and FAO since 1989. 
Governments have elected to follow the new PIC procedures during this 
interim period before the Convention enters into force.
    The PIC treaty makes an important contribution to global chemicals 
management by drawing attention to those substances causing the 
greatest harm, disseminating that information, and facilitating 
national decision-making on chemical imports. To date, the Convention 
has 20 Parties out of 50 required for entry into force. As with the 
POPs treaty, WWF would like to see the United States ratify PIC prior 
to the Johannesburg Summit, and we therefore support the Bush 
Administration's decision to bundle PIC for the purpose of Senate 
``advice and consent'' and implementing legislation.
    Many of the POPs-, LRTAP-, and PIC-related legislative provisions 
are inter-related. WWF would be happy to work with E&PW staff to help 
ensure that the implementing legislation facilitates rather than 
hinders the efficient working of these laws.
    In closing, we wish to applaud Chairman Jeffords and Committee 
staff for the hard work and initiative that went into introducing this 
legislation. Full implementation of these agreements is essential to 
protecting the American people from the threat of POPs and other toxic 
substances.
    Thank you for the opportunity to testify today. I would be happy to 
answer any questions.

                                 ______
                                 

Prepared Statement of Hon. James M. Jeffords, U.S. Senator from Vermont

    The dramatic growth in chemicals production and trade over the past 
several decades has raised awareness about the potential risks posed by 
hazardous chemicals and pesticides to human health and the environment. 
While many countries have developed extensive regulatory controls, 
since chemicals circulate globally through trade or naturally via air, 
water, and animals, it is evident that international action is 
required. The Rotterdam Convention on the Prior Informed Consent 
Procedure for Certain Hazardous Chemicals and Pesticides in 
International Trade (PIC Convention) and the Stockholm Convention on 
Persistent Organic Pollutants (POPs Convention) provide the 
international framework for the environmentally sound management of 
hazardous chemicals.
    The PIC Convention requires exporters trading in a list of 
hazardous substances to obtain the prior informed consent of importers 
before proceeding with the trade. The Convention provides importing 
countries with information to identify potential hazards and exclude 
chemicals they cannot manage safely. If a country agrees to import 
chemicals, the Convention promotes their safe use through labeling 
standards, technical assistance, and other forms of support. It also 
ensures that exporters comply with the requirements.
    Persistent Organic Pollutants, or POPs, are pesticides and 
industrial chemicals that resist degradation in the environment, 
bioaccumulate in human and animal tissue, can travel long distances 
from their sites of use and release, and are toxic to humans and 
wildlife. Specific health effects resulting from exposure to POPs can 
include cancer, allergies and hypersensitivity, damage to the nervous 
systems, reproductive disorders, and disruption of the immune system.
    The POPs Convention built on the accomplishments of the PIC 
Convention by targeting the phaseout of 12 of the most hazardous 
pesticides and industrial chemicals, including DDT and PCBs, and 
providing a process for the nomination, science-based assessment, and 
addition of other POPs to the treaty. For intentionally produced POPs, 
that is, pesticides and industrial chemicals, production and use will 
either be eliminated or restricted and, in each case, trade will be 
restricted. Releases of unintentionally produced POPs will continue to 
be minimized and, where feasible, eliminated. Stockpiles must be 
disposed of in an environmentally sound manner.
    During negotiations on these treaties, the U.S. sought input from 
both industry and public interest organizations, and these groups as 
well as the Administration and Members of Congress have supported 
ratification. The POPs Convention was endorsed in April 2001 by 
President Bush, Secretary of State Colin Powell, and EPA Administrator 
Christine Todd Whitman in a Rose Garden ceremony, and was signed by the 
U.S. in May 2001.
    I enthusiastically support the PIC and POPs Conventions and have 
been working for over a year on implementing legislation so that the 
U.S. will be in a position to ratify these treaties. On April 11, 2002, 
I introduced the POPs Implementation Act of 2002 (S. 2118). The bill 
sought to amend the Toxic Substances Control Act (TSCA) and the Federal 
Insecticide, Fungicide, and Rodenticide Act (FIFRA) to enable the 
ratification of the POPs Convention and the Protocol to the 1979 
Convention on Long-Range Transboundary Air Pollution on Persistent 
Organic Pollutants (LRTAP POPs Protocol), a regional agreement 
targeting 16 POPs, including the 12 covered by the POPs Convention. The 
same day the Administration submitted implementing legislation to 
ratify and implement these treaties as well as the PIC Convention.
    While the two bills were similar, the Administration's package 
failed to include a mechanism for the addition of new POPs chemicals. 
As a result, FIFRA and TSCA which had never been amended since its 
enactment in 1976, would have to be amended each time a chemical was 
added to the treaty. Such a process would be extremely cumbersome. This 
is not sound legislative policy as this approach invites politicizing 
of decisions that are important to the health of communities all around 
the world. In addition, this would not fulfill all our commitments to 
the POPs Convention.
    Since last spring the Environment and Public Works Committee has 
been working on a bipartisan basis on compromise legislation with 
respect to TSCA, including on a science-based process consistent with 
the POPs Convention for listing additional chemicals exhibiting POPs 
characteristics. A similar process is underway in the Senate 
Agriculture, Nutrition and Forestry Committee, which has jurisdiction 
over FIFRA, and a similar adding mechanism is anticipated.
    The U.S. is currently in compliance with most aspects of this 
treaty. While one important amendment must provide EPA with the 
authority, which it currently does not have, to prohibit the 
manufacture for export of the twelve POPs and POPs that are identified 
in the future, the registrations for nine of the twelve POPs covered by 
the Convention have been canceled, the manufacture of PCBs has been 
banned, and stringent controls have been placed on the release of other 
covered chemicals.
    The impetus for a global POPs treaty came from developed countries. 
Many developing countries have undertaken substantial commitments with 
respect to the phaseout of the initial 12 POPs and finding affordable 
substitutes. The U.S., which must do so little to comply with the 
treaty's current obligations, should at a minimum be prepared to 
implement the treaty in its entirety--by having in place a mechanism to 
address additional chemicals so that they can be eliminated in a timely 
manner once international consensus has been reached on their 
deleterious effects to human health and the environment.
    The Convention also contains two safeguards that offer flexibility 
in determining whether and how to take domestic action against future 
POPs. Under Article 22(3), agreed additions become binding on all 
parties, subject to the option to ``opt out'' of such obligations 
within one year. Another provision under Article 25(4), which was 
proposed by the U.S. during negotiations, permits a party to declare 
when ratifying the Convention that it will be bound by new chemical 
amendments only if it affirmatively ``opts in'' via a separate, 
subsequent ratification process. The State Department has indicated 
that the U.S. will avail itself of the ``opt in'' provision, enabling 
the Senate to give its advice and consent to the addition of each new 
POP.
    I encourage the Senate Foreign Relations Committee to stipulate in 
its resolution of ratification that the U.S. shall not deposit the 
instruments of ratification for these treaties until the President 
signs into law a bill that implements the treaties, and that shall 
include clarifications to U.S. law regarding the listing of additional 
POPs chemicals. This would permit the committees with jurisdiction over 
the applicable domestic laws to complete their work and would enable 
the U.S. to fully implement its treaty obligations with respect to the 
addition of new chemicals as outlined in Articles 8 and 22 and Annexes 
D, E, and F of the treaty. There is precedent for such conditions for 
ratification, notably the World Intellectual Property Organization 
Copyright Treaty and the World Intellectual Property Organization 
Performances and Phonograms Treaty (Treaty Doc. 105-17) and the 
Convention on Protection of Children and Cooperation in Respect of 
Intercountry Adoption (Treaty Doc. 105-51).
    I look forward to continuing to work with my colleagues, the 
Administration, and other stakeholders to ratify these treaties and to 
pass environmentally responsible implementing legislation that 
addresses all treaty obligations. Ratification based on incomplete 
legislative authority would further weaken U.S. credibility with 
respect to the environment and increase resentment among the 
international community over perceived U.S. unilateralism. Such 
ratification would also be unnecessary and unfortunate, given the 
widespread support for these treaties, a rarity in international 
environmental policymaking. The U.S. must resume its leadership role on 
global environmental problems by serving as a model for other 
countries. We cannot expect other countries to take on new commitments 
if we are unwilling to implement our most basic obligations.

                                 ______
                                 

      Prepared Statement of Hon. John F. Kerry, U.S. Senator from 
                             Massachusetts

    I am pleased that the Chairman has taken up consideration of these 
important treaties, in particular the Stockholm Convention on 
Persistent Organic Pollutants (POPs Convention). The POPs Convention 
addresses a specific group of chemicals, such as DDT, that share four 
characteristics of concern: they are toxic; extremely persistent in the 
environment; bioaccumulate in the food chain; and are able to travel 
long distances. POPs have been linked to adverse health impacts on 
humans and other living beings, including cancer and reproductive 
disorders, and disruption of the immune system. Although the U.S. has 
already banned many of these chemicals, their continued use by other 
countries has impacted the United States. POPs are truly a global 
problem that require a global solution.
    The POPs Convention provides a balanced, realistic approach to 
reducing the threats from these chemicals and has garnered broad 
support from many different stakeholders. I understand that the 
Convention has the support not only of the U.S. chemical industry, but 
also of U.S. environmental groups.
    One of the most important aspects of the Convention is that it 
creates a mechanism to add new chemicals that share these same four 
characteristics. The adding mechanism ensures that the treaty will have 
relevance beyond the initial twelve chemicals that are named in the 
agreement. The mechanism is science-based, with multiple criteria that 
must be met before a chemical can be considered for addition to the 
Convention.
    While I believe the Senate should support this important instrument 
in giving its advice and consent, I am concerned that the 
Administration's proposed implementing legislation fails to adequately 
address this most important aspect of the Convention. Without 
comprehensive legislation, the U.S. will not be able to implement the 
entire agreement, and will risk putting itself, its citizens, and its 
industry on unequal footing with the rest of the world. Therefore, the 
Senate should ensure that when the U.S. deposits its instrument of 
ratification, that it does so with legislation necessary to fully 
implement the provisions regarding the addition of substances.
    I look forward to working with my colleagues on the Senate Foreign 
Relations Committee, on the Environment and Public Works Committee, and 
on the Agriculture Committee to achieve this goal.

                                 ______
                                 

     Prepared Statement of Juanita M. Madole, Counsel, Law Firm of
                             Speiser Krause

    Mr. Chairman and Members of the Committee:
    My name is Juanita M. Madole and I am of counsel to the law firm of 
Speiser Krause, with which I have practiced for the past 27 years, 
primarily representing families of people who are killed or people who 
are injured in airplane accidents. Prior to moving into the private 
practice of law, I was a trial attorney with the Aviation Litigation 
Unit, Civil Division, United States Department of Justice.
    I am currently serving as Liaison Counsel in the litigation arising 
from the crash of Singapore Airline's 747 at Taipei, Taiwan on October 
31, 2000. I am also a member of the Steering Committees designated to 
handle the litigation arising from the crash of Korean Air Lines B-747 
at Agana, Guam in August 1997, pending in the Central District of 
California, and the January 31, 2000 Alaska Airlines 261 disaster, 
pending in the Northern District of California. I previously served as 
a member of the Plaintiffs' Steering Committee representing the 
passengers on board United Flight 811, which experienced a cargo door 
failure out of Honolulu on February 24, 1989 (MDL 807), and was Liaison 
Counsel on the Steering Committee representing the passengers on Korean 
Air Lines Flight 007 (MDL 565), which was shot down over the Soviet 
Union in September, 1983. Both United 811 and Korean Air 007 involved 
issues of willful misconduct against the airlines. I also represented 
numerous claimants in the United 232 disaster, the DC-10 that crashed 
at Sioux City, Iowa on July 19, 1989 (MDL 817). I have acted as counsel 
to Plaintiffs' Steering Committees in the following multidistrict 
litigation: the Northwest MD8O crash at Detroit, Michigan, 1987 (MDL 
742); Continental DC-9 accident at Denver, Colorado 1987 (MDL 751); 
Arrow Air crash at Gander Newfoundland, 1985; Air Canada DC-9 fire, 
1983 (MDL 569); Air Florida B-737 crash at Washington, D.C., 1982 (MDL 
499); Saudia Airlines L1011 crash at Riyadh, Saudi Arabia, 1980 (MDL 
458); American Airlines DC-10 crash at Chicago, Illinois litigation, 
1979 (MDL 391); Southern Airways DC-9 crash, New Hope, Georgia 
litigation, 1977 (MDL 320); Turkish Airlines DC-10 crash at Paris, 
France, 1974 (MDL 164); and the Alaska Airlines B-727 crash at Juneau, 
Alaska, 1971 (MDL 107).
    I have prepared numerous legal briefs for the United States Supreme 
Court, and was chosen to present oral argument in a case before the 
Supreme Court in April 1998. I have also appeared before most of the 
United States Circuit Courts of Appeal.
    I am the past Chairman of the Aviation and Space Law Committee of 
the Tort and Insurance Practice Section, American Bar Association, as 
well as one of the five-member Advisory Board to the prestigious SMU 
Journal of Air Law and Commerce. I am also on the Editorial Advisory 
Board to the Aviation Litigation Reporter, and am an active member of 
the D.C. Bar Association, Federal Bar Association, Texas Bar 
Association, Colorado Bar Association, California Bar Association, 
American Trial Lawyer's Association, and the Lawyer Pilot Bar 
Association.
    I am the author or co-author of Recovery for Wrongful Death (Third 
Edition) (Clark Boardman Callahan, 1992); Negligence Litigation 
Handbook: State and Federal (John Wiley & Sons, 1986); ``Wrongful Death 
Damages'', Trial Magazine, September, 1989; ``Litigating the General 
Aviation Case'', Trial Magazine, February, 1989; and am the Editor of 
Litigating the Aviation Case and The Government Contractor Defense: A 
Fair Defense or the Contractors' Shield.
    In 1992, I was a member of a Presidential Delegation to Moscow, 
which met with the Russian government to obtain previously unreleased 
documents relating to the 1983 shootdown of KAL Flight 7; the only 
lawyer included in the Delegation.
    In the course of my practice I have frequently become involved with 
litigation to which the Warsaw Convention in its original form applied. 
The restrictions and constraints imposed by the original Warsaw 
Convention have been burdensome and unfair to many American passengers 
on both domestic and international flights. Because application of the 
Warsaw Convention is dependent upon the itinerary purchased by the 
passenger, passengers involved in domestic flights may be covered by 
the Warsaw Convention as well as those who are clearly on international 
legs if they bought their ticket overseas, even if the crash involves 
one leg of their journey on an American air carrier.
    When the United States adhered to the original Warsaw Convention in 
1934, it did so because the airline industry was in its infancy and 
there was felt the need to provide some protections so it could develop 
in to a major economic resource. While that may have been a laudable 
goal almost 70 years ago, it was not well considered as it was related 
to American jurisdiction. The Warsaw Convention was drafted by civil 
code countries rather that ones imbued with common law concepts, as is 
The United States. Thus its interpretation in American courts has been 
problematic. The United States did not send a delegate to the 
conference discussing the terms of the Treaty, only an observer, and 
this oversight resulted in the absence of consideration of common law 
jurisdictions' needs. Unfortunately this has meant that its provisions 
have been amongst the most litigated of any treaty, usually to the 
detriment of the innocent passengers.
    Much has changed since 1934. The airline industry has long ago left 
its infancy. This Committee has the opportunity to examine the Montreal 
Convention in the light of modern development. This Committee can and 
has solicited the views of a wide variety of interested individuals and 
entities, unlike the Foreign Relations Committee of 70 years ago, which 
only heard testimony from the Secretary of State. This Committee should 
pay heed to all those, including me, who support ratification of the 
Montreal Convention which, like the airline industry, has evolved over 
the past decades to a mature and well considered vehicle for 
compensation.
    During the years of the regime of the original Warsaw Convention, 
we, as litigators in behalf of the passengers, had to prove willful 
misconduct in order to break the maximum limit of $75,000 imposed by 
the Warsaw Convention and the special contract known as the Montreal 
Agreement. Because of the burdensome nature of having to prove willful 
misconduct, many of the passengers were unable to receive full 
compensation and were limited to the maximum limit of $75,000. This, of 
course, was wholly inequitable be those passengers, both because of the 
arbitrary monetary cap and also because we often had to incur 
considerable expenses in order to try to establish willful misconduct 
to try to provide full compensation for the passengers.
    Not only was there the arbitrary monetary limit, but also some 
American passengers were unable to sue in the United States, their home 
country, because of the venue provisions for Article 28 of the Warsaw 
Convention. There are thousands of Americans who work overseas, in 
embassies, for American companies doing business overseas, for 
charitable organizations, as part of the United Nations efforts, and 
for many other reasons. If any of the thousands of Americans who worked 
overseas were on international flights for which they purchased their 
tickets overseas and were killed or injured on a non-American carrier, 
they were unable to bring suit in the United States, even if the 
carrier did considerable business here. This is true even if all of the 
passengers' beneficiaries and heirs lived in the United States.
    The Montreal Convention, which is before this august body for 
ratification, would remedy the inequities to Americans contained in the 
original Warsaw Convention. It would provide a guaranteed recovery of 
100,000 SDRs and would provide for full compensation unless the airline 
could prove that it had taken all necessary measures to avoid the 
accident. It would also provide jurisdiction in the United States for 
all Americans where the airline involved did business in the United 
States.
    Importantly, it would positively address the needs of the truby 
innocent injured: the widowed spouses, children, and parents of persons 
killed or passengers injured in accidents through no fault of their 
own. It will provide compensation in a timelier manner with lower cost 
and less attorneys' fees. And it would do so in a just manner to all 
involved.
    The Montreal Convention is a winning vehicle all around. It is 
beneficial to the passengers, who of course are my main concern, but it 
is also beneficial to the airlines and to the insurers. The airlines 
and their insurers would know what their exposure is and would benefit 
from decreased legal fees because they would not have to pay defense 
lawyers to defend against protracted and expensive litigation on 
willful misconduct. The Montreal Convention also permits the airline to 
maintain any claims over against other third party wrongdoers or 
products liability claims.
    I herewith strongly urge the Senate Foreign Relations Committee to 
ratify the Montreal Convention as expeditiously as possible so that it 
can become the law of the land governing recoveries in international 
air transportation.
    I would be delighted and honored to testify personally before this 
Committee should anyone wish to have further explanation of my 
position.

                                 ______
                                 

  Statement of Physicians for Social Responsibility, Karen L. Perry, 
            Deputy Director, Environment and Health Program

  physicians for social responsibility  oceana  u.s. 
   public interest research group  center for international 
   environmental law  national environmental trust  
  friends of the earth  environmental defense  sierra 
  club  natural resources defense council  the ocean 
 conservancy  national wildlife federation  creenpeace 
   children's environmental health network  pesticide 
 action network north america  circumpolar conservation union 
  center for environmental health  center for health, 
  environment and justice  environmental health fund  
  science and environmental health network  alaska community 
 action on toxics  citizens' environmental coalition  
  montana environmental information center  washington toxics 
   coalition  oregon toxics alliance  arizona toxics 
information  environmental research foundation  women's 
voices for the earth  montana-cheer  department of the 
 planet earth  resources for sustainable communities  
  institute for children's environmental health  basel action 
 network  asia pacific environmental exchange  ecology 
                                 center

                                                     June 20, 2003.

The Honorable Richard G. Lugar
United States Senate
Washington, DC.

The Honorable Joseph R. Biden, Jr.
United States Senate
Washington, DC.

    Dear Senators Lugar and Biden,

    Our organizations write in response to your Committee's hearing 
this week on the Stockholm Convention on Persistent Organic Pollutants 
(POPs). As organizations committed to protecting the environment and 
public health from toxic substances, we staunchly support the aims of 
this important environmental treaty, and have advocated domestically 
and abroad for its swift ratification and entry into force. At the same 
time, we believe that ratification by the United States must be coupled 
with the passage of full and effective implementing legislation, and we 
ask that your Committee include provisions in the resolution of 
ratification that will condition the Senate's advice and consent upon 
completion of such legislation.
             the addition of pops is central to the treaty
    As you know, the Stockholm Convention seeks to eliminate a group of 
dangerous chemicals that harm human health and the environment 
globally. Assistant Secretary of State Turner, in his oral statement 
before your Committee, said the treaty aims to protect human health and 
the environment from 12 chemicals often referred to as the ``dirty 
dozen.'' This is true, but it is only the beginning.
    The Stockholm Convention is a dynamic, forward-looking agreement In 
addition to phasing out and eliminating the initial 12 POPs, it 
includes a science-based process to identify, assess, and control other 
dangerous POPs that warrant global concern. The United States has 
already banned most of the dirty dozen. Addressing the small group of 
additional POPs in the future will thus be among the United States key 
Stockholm obligations.
    POPs pose a hazard because of their toxicity to animals and people, 
their persistence in the environment and in the fatty tissues of living 
organisms, their ability to travel long distances on air and water 
currents, and their propensity to bioaccumulate in food chains. The 12 
chemicals named in the treaty and other POPs not yet listed have become 
common contaminants of fish, dairy products, and other foods in the 
United States and around the world. Many Americans may now carry enough 
POPs in their bodies to cause serious health effects, including 
reproductive and developmental problems, cancer, and disruption of the 
immune system. Children in the most heavily contaminated areas, 
including Alaska and the Great Lakes region, are at particular risk.
implementing legislation must include an effective ``adding mechanism''
    In a Rose Garden ceremony in 2001, President Bush announced his 
support for the Stockholm Convention, noting that it ``shows the 
possibilities for cooperation among all parties to our environmental 
debates.'' The Administration's official treaty transmittal to the 
Senate in 2002, however, was unclear as to whether it would seek 
domestic legislative changes related to additional POPs, and a bill 
subsequently proposed by the White House failed even to recognize this 
crucial element of the treaty. This omission raises significant 
concerns for our organizations. In our view, a timely and effective 
mechanism that enables the United States to regulate POPs chemicals as 
they are added to the Convention is the most important component of the 
Stockholm Convention implementing legislation.
    Over the past year, public interest groups and the chemical 
industry have worked closely with a bipartisan group of Senators in the 
Environment and Public Works Committee (EPW), including Senators 
Jeffords and Chafee, to craft legislation that includes the so-called 
POPs ``adding mechanism.'' While the Bush Administration has by now 
acknowledged the necessity of the adding mechanism and has participated 
in some of these discussions, recent OMB proposals would create an 
adding mechanism so cumbersome and regressive that it would be 
extremely difficult if not impossible for EPA to take action when POPs 
are added to the treaty.
    A number of our organizations are continuing to work with EPW to 
achieve a legislative solution. After EPW develops an adding mechanism 
to govern industrial chemicals under the Toxic Substances Control Act 
(TSCA), that mechanism must be adapted to address the complexities of 
pesticide regulation under the Federal Insecticide, Fungicide and 
Rodenticide Act (FIFRA). The mechanism must enable EPA to respond 
swiftly when new POPs are identified and added to the Convention, and 
to take prompt, health-protective action to address these chemicals 
domestically. We appreciate the hard work and perseverance of Senators 
Chafee and Jeffords in striving to address these issues. We remain 
hopeful that their legislation will include a robust, protective 
process to authorize the United States to regulate additional POPs 
effectively and efficiently.
   advice and consent should be conditioned on complete implementing 
                               authority
    The Senate has an obligation to ensure that the Stockholm 
Convention can be fully implemented in the United States. To achieve 
such an outcome, the Senate will need to hold the Administration firmly 
to its commitment to an effective adding mechanism.
    It is not uncommon for the, Senate to condition its advice and 
consent to an international agreement on the completion of appropriate 
legislative authority, including specific implementation issues. For 
example, in its resolution of ratification for the World Intellectual 
Property Organization Copyright Treaty and the World Intellectual 
Property Organization Performances and Phonograms Treaty, the Senate 
placed the following condition on ratification:

          The United States shall not deposit the instruments of 
        ratification for these Treaties until such time as the 
        President signs into law a bill that implements the Treaties, 
        and that shall include clarifications to United States law 
        regarding infringement liability for on-line service providers, 
        such as contained in H.R. 2281.

    A similar condition would be appropriate for the Stockholm 
Convention, specifying the need for implementing legislation that 
includes an effective adding mechanism:

          The United States shall not deposit the instrument of 
        ratification for this Convention until such time as the 
        President signs into law a bill that implements the Convention, 
        and that shall include changes to United States law that fully 
        implement and give substantial weight to its Article 8 
        provisions for adding new persistent organic pollutants.

    The Stockholm Convention offers a rare example of consensus in the 
current international environmental policy arena. However, unless the 
Foreign Relations Committee and the full Senate insist upon domestic 
legislation that includes a timely and effective mechanism to enable 
the United States to regulate POPs chemicals as they are added to the 
Convention, the treaty will not provide the level of public health 
protections it was designed for, and the United States may be seen as 
skirting its most important Stockholm commitment. If this occurs, 
widespread environmental and public health support for the treaty will 
not be assured.
    Please do not hesitate to contact us if we can be of assistance in 
this important endeavor. Contact Karen Perry at Physicians for Social 
Responsibility, 202-667-4260 x249 or [email protected].
            Sincerely,

Karen L. Perry, Deputy Director
Environnent and Health Program
Physicians for Social Resonsibility Sylvia Liu
                                    Acting Senior Director of Law and 
                                    Policy
                                    Oceana

Julie Wolk
Environmental Health Advocate
U.S. Public Interest Research Group Glenn Wiser
                                    Senior Staff Attorney
                                    Center for International 
                                    Environmental Law

Kevin S. Curtis
Vice President
National Environmental Trust        Sara Zdeb
                                    Legislative Director
                                    Friends of the Earth

Elizabeth Thompson
Legislative Director
Environmental Defense               Debbie Sease
                                    Legislative Director
                                    Sierra Club

Jacob Scherr
Director, International Programs
Natural Resources Defense Council   Julia Hathaway
                                    Legislative Director
                                    The Ocean Conservancy

Jim Lyon
Senior Director of Congressional & 
Federal Affairs
National Wildlife Federation        Rick Hind
                                    Legislative Director, Toxics 
                                    Campaign
                                    Greenpeace

Daniel Swartz
Executive Director
Children's Environmental Health 
Network                             Kristin S. Schafer
                                    Program Coordinator
                                    Pesticide Action Network North 
                                    America

Evelyn M. Hurwich
Executive Director
Circumpolar Conservation Union      Katherine R. Silberman. JD
                                    Associate Director
                                    Center for Enviromnental Health

Michele L. Roberts
Organizing and Campaigu Director
Center for Health, Envirorment and 
Justice                             Gary Cohen
                                    Executive Director
                                    Environmental Health Fund

Ted Schettler, MD, MPH
Science Director
Science and Environmental Health 
Network                             Pamela K. Miller
                                    Director
                                    Alaska Community Action on Toxics

Kathleen A. Curtis
Executive Director
Citizens' Environmental Coalition   Anne Hedges
                                    Program Director
                                    Montana Environmental Information 
                                    Center

Gregg Small
Executive Director
Washington Toxics Coalition         David Monk
                                    Executive Director
                                    Oregon Toxics Alliance

Michael Gregory
Executive Director
Arizona Toxics Information          Peter Montague
                                    Director
                                    Environmental Research Foundation

Aimee Boulanger
Executive Director
Women's Voices for the Earth        Tony Tweedale
                                    Montana-CHEER (Coalition for 
                                    Health,
                                      Environmental & Economic Rights)

Erik Jansson
Executive Director
Department of the Planet Earth      Wendy Steffensen
                                    North Sound Baykeeper
                                    RE Sources for SustainabIe 
                                    Communities

Elise Miller, M.Ed.
Executive Director
Institute for Children's 
Environmental Health
Freeland, WA                        Jim Puckett
                                    Coordinator
                                    Easel Action Network

Dave Batker
Director
Asia Pacific Environmental Exchange Tracey Easthope, MPH
                                    Director, Environmental Health 
                                    Project
                                    Ecology Center

                              ----------                              


             Additional Questions Submitted for the Record


                                ------                                


    Responses of Hon. Jeffrey N. Shane, Under Secretary for Policy, 
   Department of Transportation and John R. Byerly, Deputy Assistant 
Secretary of State for Transportation Affairs, to Additional Questions 
          for the Record Submitted by Senator Richard G. Lugar

             the montreal convention and the hague protocol
    Question 1. There is a great deal of practice and judicial 
precedent interpreting the Warsaw Convention and the various protocols 
to it. While the Montreal Convention is designed to replace these prior 
agreements, is it intended that this body of practice and judicial 
precedent will remain applicable to similar interpretive questions that 
may arise under the Montreal Convention?

    Answer. While the Montreal Convention provides essential 
improvements upon the Warsaw Convention and its related protocols, 
efforts were made in the negotiation and drafting to retain existing 
language and substance of other provisions to preserve judicial 
precedent relating to other aspects of the Warsaw Convention, in order 
to avoid unnecessary litigation over issues already decided by the 
courts under the Warsaw Convention and its related protocols.
    To this end, the Reference Text, which constituted the basic text 
utilized by the Diplomatic Conference, set forth for each article 
references to the articles of the earlier instrument from which the 
article was derived, with red-lined additions or deletions showing the 
changes to the earlier articles adopted by the Legal Committee and the 
Special Group in preparing the draft text submitted to the Diplomatic 
Conference. The language of the prior convention and protocols was 
tracked specifically for the purpose of preserving, to the greatest 
extent possible, the validity of judicial precedents that apply to the 
provisions of the previous convention and protocols.
    This intention was also confirmed by the Rapporteur, who 
acknowledged that the new Convention ``would modernize the liability 
regime, while incorporating as far as possible the existing instruments 
of the `Warsaw System.' '' Report of the 30th Session of the Legal 
Committee at para. 4:5, ICAO Doc. 9693-LC/190 (May 9, 1997), reprinted 
in ICAO Doc. 9775-DC/2, International Conference on Air Law, Vol. III 
(Preparatory Materials), 151, 159. The Chairman of the Legal Committee 
underscored this approach in his comments to the Drafting Group. (The 
Chairman of the Legal Committee ``reminded the Drafting Group of the 
working method that had been used for the Legal Committee which was not 
to change the wording of provisions of existing instruments, 
particularly the Warsaw Convention, unless there was a need to do so 
for purposes of modernization and consolidation.'' Id. at para. 4:83.) 
See also Report of the 30th Session of the Legal Committee at para. 
4:231 (the Chairman of the Drafting Group reporting to the Legal 
Committee that ``it had been the understanding of the Drafting Group 
that, where appropriate, the Secretariat would provide linguistic 
embellishments to the text, without touching its substance'')

    Question 2. In submitting this convention to the Senate, the prior 
Administration recommended that the United States should make a 
declaration pursuant to Article 57(a) of the convention that the 
convention shall not apply to the operations of State aircraft. Does 
the current administration also recommend this declaration? If so, 
please explain the effect of the declaration and the reason for 
recommending it.

    Answer. Yes, we recommend that the Senate give its advice and 
consent to ratification of the Montreal Convention subject to the 
condition that a declaration be made on behalf of the United States 
that the Convention shall not apply to international carriage by air 
performed and operated directly by the United States for non-commercial 
purposes in respect to its functions and duties as a sovereign State.
    This declaration would be consistent with the declaration made by 
the United States under the Warsaw Convention and is specifically 
permitted by Article 57(a) of the Montreal Convention. We recommend 
making this declaration in order to continue the existing law in the 
United States, under which U.S. Government liability relative to 
transportation provided on aircraft owned and operated by the U.S. 
Government, including by the U.S. military, is determined under U.S. 
law, with no application of the Warsaw Convention or its protocols.

                                 ______
                                 

    Responses of Hon. Jeffrey N. Shane, Under Secretary for Policy, 
   Department of Transportation and John R. Byerly, Deputy Assistant 
Secretary of State for Transportation Affairs, to Additional Questions 
        for the Record Submitted by Senator Joseph R Biden, Jr.

             the montreal convention and the hague protocol
    Question 1. Are there any related exchange of notes, official 
communications, or statements of the U.S. negotiating delegation not 
submitted to the Senate with regard to the Convention which would 
provide additional clarification of the meaning of terms of the 
Convention?

    Answer. The Administration has supplied the Senate Foreign 
Relations Committee staff with the Record of Proceedings of the 1999 
Montreal Diplomatic Conference at which the 1999 Montreal Convention 
was adopted. That Record consisted of three Volumes: I Minutes; II 
Documents; and III Preparatory Materials. All U.S. communications which 
might clarify the meaning of terms of the Convention are contained in 
those proceedings.
    We note that the United States Delegation submitted a paper to the 
Diplomatic Conference (DCW Doc. No. 51, May 5, 1999), proposing a 
clarification of what is now Article 41 of the Montreal Convention that 
a carrier that participates in a code share with the actual carrier, 
but is not the marketing carrier with respect to a particular 
passenger, is not liable for claims brought by or on behalf of that 
passenger. Furthermore, the paper proposed clarifying that Article 41 
would not apply to successive carriage within the meaning of what is 
now Article 36. The proposal was withdrawn when there was a general 
consensus that this clearly would be the case, and that no 
clarification was needed.

    Question 2. The transmittal letter from the President to the 
Senate, and the letter from Secretary of State to the President, both 
discuss the recommendation that the Senate enter a reservation related 
to international carriage by air performed and operated directly by the 
United States for non-commercial purposes. Does the State Department 
recommend any particular language that the Committee should adopt?

    Answer. We recommend that the Senate give its advice and consent to 
ratification of the Montreal Convention subject to the condition that a 
declaration be made on behalf of the United States pursuant to Article 
57(a) that: ``This Convention shall not apply to international carriage 
by air performed and operated directly by the United States for non-
commercial purposes in respect to the functions and duties of the 
United States as a sovereign State.''

    Question 3. In the article-by-article analysis, it is stated that 
``[m]uch of the Convention derives from provisions in the Warsaw 
Convention and its related instruments negotiated over the span of 
several decades'' (T.Doc. 106-45, at 1)

          With regard to articles drawn from a prior provision in the 
        Warsaw Convention, as amended by the Hague Protocol and 
        Montreal Protocol No. 4, and such article is not materially 
        different in the Montreal Convention, did the signatories 
        intend that the meaning of the provision of the Warsaw 
        Convention, as amended by the Hague Protocol and Montreal 
        Protocol No. 4 (and the applicable decisional law) should 
        continue without change?

          The only authentic language of the Warsaw Convention is 
        French. There are several authentic languages in the Montreal 
        Convention. Are you aware of any provisions in the original 
        Warsaw Convention which are contained in the Montreal 
        Convention which have a materially different meaning in 
        English?

    Answer. It is clear from the negotiating record that the drafters 
of the Montreal Convention, while providing essential improvements upon 
the Warsaw Convention and its related protocols, made efforts in the 
negotiation and drafting of the Convention to retain existing language 
and substance of other provisions to preserve judicial precedent 
relating to other aspects of the Warsaw Convention, in order to avoid 
unnecessary litigation over issues already decided by the courts under 
the Warsaw Convention and its related protocols.
    To this end, the Reference Text, which constituted the basic text 
utilized by the Diplomatic Conference, set forth for each article 
references to the articles of the earlier instrument from which the 
article was derived, with red-lined additions or deletions showing the 
changes to the earlier articles adopted by the Legal Committee and the 
Special Group in preparing the draft text submitted to the Diplomatic 
Conference. The language of the prior convention and protocols was 
tracked specifically for the purpose of preserving, to the greatest 
extent possible, the validity of judicial precedents that apply to the 
provisions of the previous convention and protocols.
    This intention was also confirmed by the Rapporteur, who 
acknowledged that the new Convention ``would modernize the liability 
regime, while incorporating as far as possible the existing instruments 
of the `Warsaw System.' '' Report of the 30th Session of the Legal 
Committee at para. 4:5, ICAO Doc. 9693-LC/190 (May 9, 1997), reprinted 
in ICAO Doc. 9775-DC/2, International Conference on Air Law, Vol. III 
(Preparatory Materials), 151, 159. The Chairman of the Legal Committee 
underscored this approach in his comments to the Drafting Group. (The 
Chairman of the Legal Committee ``reminded the Drafting Group of the 
working method that had been used for the Legal Committee which was not 
to change the wording of provisions of existing instruments, 
particularly the Warsaw Convention, unless there was a need to do so 
for purposes of modernization and consolidation.'' Id. at para. 4:83.) 
See also Report of the 30th Session of the Legal Committee at para. 
4:231 (the Chairman of the Drafting Group reporting to the Legal 
Committee that ``it had been the understanding of the Drafting Group 
that, where appropriate, the Secretariat would provide linguistic 
embellishments to the text, without touching its substance'').
    With regard to the second part of this question, we are not aware 
of any provisions in the original Warsaw Convention, for which French 
was the official language, that are contained in the Montreal 
Convention and would have a materially different meaning in English. We 
note that the courts have looked to the French language text of Article 
25 of the Warsaw Convention in connection with the interpretation of 
``dol ou d'une faute qui, d'apres la loi du tribunal saisi, est 
consideree comrne equivalente au dol,'' translated in the U.S. English-
language text as ``wilful misconduct or by such default on his part as, 
in accordance with the law of the court to which the case is submitted, 
is considered to be equivalent to wilful misconduct.'' This French 
phrase was not uniformly translated and interpreted around the world, 
resulting in confusion for lawyers and judges attempting to apply the 
Convention. This confusion was largely resolved in the amendment to 
Article 25 included in The Hague Protocol, and later adopted in 
Montreal Protocol No. 4 and the 1999 Montreal Convention. The 
amendment, in all substantive respects, adopts the language of the New 
York trial court's instructions to the jury in Froman v. Pan American 
Airways, Supreme Court of New York County, March 9, 1953. The Hague 
Protocol language, ``done with intent to cause damage or recklessly and 
with knowledge that damage would probably result,'' was intended to 
replace the standard of wilful misconduct with a common law definition 
of wilful misconduct, and was not intended to modify the scope of the 
standard.

    Question 4. Article 1(2) of the Montreal Convention uses the phrase 
``according to the agreement between the parties;'' the same paragraph 
in the Warsaw Convention uses the phrase ``according to the contract 
made by the parties.'' Does Article 1(2) of the Montreal Convention 
mean the same thing--that is, the contract of carriage between the 
passenger and the air carrier?

    Answer. The term ``agreement between the parties'' in Article 1(2) 
of the Montreal Convention was taken from Article 1(2) of the 1955 
Hague Protocol. Our understanding is that this term was not intended to 
change materially the meaning of ``contract made by the parties'' in 
the Warsaw Convention.

    Question 5. Article 1(3) provides that a carriage by several 
successive carriers is deemed to be one undivided carriage ``if it has 
been regarded by the parties a single operation.'' How is such intent 
of the parties that carriage is a ``single operation'' to be discerned? 
What does the decisional law in the United States reflect?

    Answer. The intent of the parties would be a matter of proof, 
specifically whether the passenger intended to book a through journey 
(perhaps with a stopover) to the ultimate destination. This is 
reflected in the decisional law. Compare, Haldimann v. Delta Airlines, 
Inc., 168 F. 3d 1324 (D.C. Cir. 1999) and Egan v. Kollsrnan Instrument 
Corp., 263 N.Y.S.2d 398 (Sup. Ct. NY 1965) with Karfunkel v. Compagnie 
Nationale Air France, 427 F. Supp. 971 (S.D.N.Y. 1977), and Khan v. 
Deutsche Lufthansa German Airlines, 2000 U.S. Dist. Lexis 15408 
(S.D.N.Y. Oct. 18, 2000)

    Question 6. The Article-by-Article analysis indicates that Article 
7 is derived from the new Article 7 inserted in the Warsaw Convention 
by Article III of Montreal Protocol No. 4. This appears to be 
erroneous. The provisions of Montreal Article 7 appear to be derived 
from the new Article 6 added to the Warsaw Convention by Article III of 
Montreal Protocol No. 4. Do you agree that the Article-by-Article 
analysis is incorrect in this regard?

    Answer. Yes, we agree that the reference should be to the new 
Article 6 added to the Warsaw Convention by Article III of Montreal 
Protocol No.4.

    Question 7. Please provide background to, and the effect of, the 
exclusion of the word ``solely'' from paragraph 2 of Article 18 (the 
word ``solely'' was in the analogous provision of Montreal Protocol No. 
4 (Article 18, paragraph 3 of the Warsaw Convention as amended by the 
Hague Protocol and Montreal Protocol No. 4).

    Answer. Montreal Protocol No. 4, in effect, made the carrier an 
insurer of goods in its custody, with certain defenses which wholly 
absolved the carrier from liability, but only if the damage was solely 
due to one or more of the listed defenses. The 1999 Montreal Convention 
adopts the comparative contributory negligence concept found in Article 
21 of the 1971 Guatemala City Protocol; Article 21(2) of Montreal 
Protocol No. 4; and Article 20 of the 1999 Montreal Convention. 
Accordingly, under Article 18 of the Montreal Convention, if one of the 
defenses applies, the carrier is relieved of liability only ``to the 
extent'' that the listed defense contributed to the damage.

    Question 8. Article 20 provides for a form of comparative 
negligence which applies to ``all the liability provisions in the 
Convention, including paragraph 1 of Article 21.'' This contrasts with 
Warsaw Convention 21, which provides for comparative negligence ``in 
accordance with the provisions'' of the law of the forum. Aside from 
applying the comparative negligence standard in all cases in the United 
States, are there any substantive changes to the law as applied in the 
United States which would result under Article 20?

    Answer. At the time the Warsaw Convention was drafted in 1929, the 
doctrine of contributory negligence in many States in the United States 
denied recovery if the claimant was even partially at fault. The 1971 
Guatemala Protocol adopted the standard of comparative contributory 
negligence, whereby a claimant is denied recovery only to the extent 
that his or her negligence contributed to the damage. We believe that 
the comparative contributory negligence concept is applied in a large 
majority of, if not all, U.S. States today. The last sentence of 
Article 20 of the 1999 Montreal Convention clarifies that, 
notwithstanding the ``strict liability'' (liability without fault) 
provided in Article 21(1), a carrier retains the defense of comparative 
contributory negligence in Article 20. See Commission of the Whole, 
Minutes of the Thirteenth Meeting (Tuesday, 25 May 1999, at 1545 
hours), International Conference on Air Law, Volume I (Minutes), 199, 
202, para. 10, ICAO Doc. 9775-DC/2 (1999), (containing the statement of 
the Chairman of the Diplomatic Conference that ``it was necessary for 
the avoidance of doubt to specify in that Article that it would equally 
apply to paragraph 1 of Article 20 [now Article 21] and thus to all the 
liability provisions of the Convention'').

    Question 9. Is there not a contradiction between the last sentence 
of Article 20 and paragraph 1 of Article 21? If not, why not?

    Answer. We see no contradiction between the last sentence of 
Article 20 and paragraph 1 of Article 21, as the following example 
illustrates. In the case of sabotage of an aircraft, the carrier would 
be liable without fault to all passengers for damages up to 100,000 
SDRs. However, if the saboteur were a passenger or a claimant, it would 
not be appropriate for the saboteur, or those claiming on his or her 
behalf, to recover anything, even under the ``strict liability'' 
provision. The last sentence of Article 20 provides exoneration for a 
carrier from liability to such a passenger or claimant, including from 
the compensation not exceeding 100,000 SDRs provided in paragraph 1 of 
Article 21.

    Question 10. Article 21(2)(a) of the Montreal Convention provides 
that the carrier shall not be liable for damages exceeding 100,000 SDRs 
per passenger if the carrier proves that ``such damage was not due to 
the negligence or other wrongful act or omission of the carrier or its 
servants or agents.'' This contrasts with Article 20(1) of the Warsaw 
Convention, which allows the carrier to escape liability if he proves 
that he and his agents have taken ``all necessary measures to avoid the 
damage or that it was impossible for him or them to take such 
measures.''

          Did the signatories intend a different standard as a result 
        of this change? Please elaborate.

    Answer. The language of Article 21(2)(a) is new, but it was not, in 
our view, intended by the signatories to change the standard of proof 
of non-negligence applicable under the Warsaw Convention.

    Question 11. Article 21(2)(b) of the Montreal Convention provides 
that the carrier shall not be liable for damages exceeding 100,000 SDRs 
per passenger if the carrier proves that ``such damage was solely due 
to the negligence or other wrongful act or omission of a third party.'' 
In the United States, terrorist attacks have been found to be 
``accidents'' within the meaning of Article 17, e.g., Day v. Trans 
World Airlines, Inc., 528 F.2d 31 (2d Cir. 1975), a finding which the 
Supreme Court noted without disapproval in Air France v. Saks, 470 U.S. 
392, 405(1985). Is it possible that some terrorist attacks would 
constitute a ``wrongful act or omission of a third party'' within the 
meaning of this provision?

    Answer. Yes, depending on the facts in a particular case, courts 
could well find a terrorist attack to be ``a wrongful act or omission 
of a third party'' under Article 21(2)(b) of the Montreal Convention. 
If a court finds that the damage at issue in a particular case was 
caused solely by the ``negligence or other wrongful act or omission of 
a third party,'' the carrier would be liable only for damages up to 
100,000 SDRs per passenger. This is consistent with the Convention's 
overall framework that a carrier must be at fault in order to be liable 
to the passenger for damages over 100,000 SDRs, with the burden of 
proof on the carrier to show that it was not at fault.

    Question 12. Under Article 24(3), is there a common understanding 
among the signatories about how the States Parties are to ``express a 
desire'' that the limits of liability shall be revised. Under the 
procedure in paragraph 2, how will the new limits be determined? Simply 
by using the applicable inflation factor? Or will there be some other 
method?

    Answer. There is no prescribed means for States Parties to 
``express a desire'' that the limits shall be increased under Article 
24(3). Official notification to the International Civil Aviation 
Organization (ICAO), the depositary, would be one such means and could 
take the form of individual notifications or a collective notification 
initiated by one or more States.
    The new limits under paragraph 2 would normally be a simple 
mechanical determination by ICAO as the depositary, using the formula 
specified in Article 24(1). This was done to avoid future objections 
that States may be subjected to limits that they never agreed to; they 
have agreed in advance to the formula that is to be applied, and thus 
to the increase. In the unusual event that the increase so calculated 
were rejected by a majority of the Parties to the Convention, the 
question would then be referred to a meeting of the Parties as provided 
in Article 24(2).

    Question 13. Article 30(1) provides that a servant or agent of the 
carrier acting within the scope of their employment shall be entitled 
``to avail themselves of the conditions and limits of liability which 
the carrier itself is entitled to invoke under this Convention.'' 
(emphasis added). Paragraph 3 of the same article provides that, in 
cases not involving cargo, paragraphs 1 and 2 ``shall not apply if it 
is proved that the damage resulted from an act or omission of the 
servant or agent done with intent to cause damage or recklessly and 
with knowledge that damage would probably result.'' The term 
``conditions'' (italicized) was not in the predecessor provision 
(Article 25A of the Warsaw Convention, as amended by the Hague Protocol 
and Montreal Protocol No. 4). What is intended by the addition of this 
term to this provision and what is the practical result?

    Answer. The Montreal Convention preserves the status quo relative 
to legal actions against airline employees. Consistent with existing 
law in the United States under Montreal Protocol No. 4, the new 
Convention extends to a carrier's employees acting within the scope of 
their employment all of the ``conditions and limits of liability'' 
available to the carrier under the Convention. The phrase ``conditions 
and limits of liability'' in this context refers to the monetary limits 
set out in Articles 21 and 22 of the Convention and the conditions 
under which those monetary limits may be exceeded.

    Question 14. Article 43 contains this phrase at the end: ``. . . 
unless it is proved that they acted in a manner that prevents the 
limits of liability from being invoked in accordance with this 
Convention.'' The provision relates to servants or agents of the 
carrier acting within the scope of employment. The Article-by-Article 
analysis for the same article says as follows: ``An exception is made 
where the servant or agent acts in a manner that prevents the 
protections of the Convention from applying.'' (emphasis added). The 
Article-by-Article analysis is inconsistent with the text of Article 
43. Do you agree that it is incorrect?

    Answer. The language used in the Article-by-Article analysis for 
Article 43 of the Montreal Convention (``the protections of the 
Convention'') paraphrases, rather than quotes, that contained in the 
Convention. To the extent that it raises any question, however, we wish 
to clarify that the term ``the protections of the Convention'' was 
intended as a reference to ``the conditions and limits of liability 
which are applicable under this Convention,'' as used in Article 43--
referring to the monetary limits set out in Articles 21 and 22 of the 
Convention and the conditions under which those monetary limits may be 
exceeded.

    Question 15. Under Secretary Shane's testimony states as follows: 
``Currently, absent a voluntary waiver of the Warsaw liability limits 
by a carrier, recoveries for deaths or injuries arising as the result 
of an accident that occurs during an international flight to or from 
the United States are subject to a limit of $75,000, and can be limited 
to as little as $10,000 for flights in other markets, unless the 
passenger or the passenger's estate is able to prove `willful 
misconduct' on the part of the airline.'' Are there any foreign 
carriers flying to the United States which have not waived the Warsaw 
limits under the 1996 inter-carrier agreements? Please specify which 
carriers, if any, have not done so.

    Answer. There are currently 123 carriers that are parties to the 
IATA Intercarrier Agreement on Passenger Liability (IIA) that requires, 
at a minimum, the waiver of the Warsaw, or Warsaw/Hague, liability 
limits in their entirety. There are, however, a number of foreign 
scheduled passenger carriers licensed to fly to the United States which 
have not signed any of the 1996 inter-carrier agreements. Those 
carriers are listed below:

   Major Foreign Scheduled Passenger Airlines Licensed to Fly to the 
   United States That Are Not Signatories of the 1996 Inter-carrier 
                               Agreements


Aero California                      Ghana Airways Limited
Aero Continente Dominicana S.A.      Gulf Air Company, G.S.C.
Aero Continente, S.A.                Haiti Ambassador Airlines, S.A.
Aero Honduras, S.A. de C.V.          Haiti Aviation, S.A.
Aeroejecutivo, S.A. de C.V.          Haiti Caribbean Airlines, S.A.
Aerolane, Lineas Aereas Nacionales   Helijet International Inc.
 del Ecuador S.A.
Aerolineas Centrales de Colombia,    Hispaniola Airways C. por A.
 S.A.
Aerolineas Dominicana, S.A.          Hong Kong Dragon Airlines, Limited
Aerolitoral, S.A. de C.V.            I.M.P. Group Limited
Aeromar C. por A.                    Iran National Airlines Corporation
Aeropostal Alas de Venezuela, C.A.   Jetsgo Corporation
AeroSvit Airlines                    Kuwait Airways Corporation
Aerotours Dominicanas, S.A.          Laker Airways (Bahamas) Limited
Aerovias Caribe, S.A. de C.V.        Lan Peru, S.A.
Aerovias Venezolanas S.A.            LIAT (1974) Limited
 (``AVENSA'')
Afinat (Gambia) International        Linea Aerea de Navegacion
 Airlines Limited                     Dominicana, S.A. Lan
Air Canada Regional, Inc.              Dominicana
Air Comet, S.A.                      Linea Aerea Nacional Hondurena,
                                      S.A. de C.V.
Air Europa Lineas Aereas, S.A.       Lineas Aereas Allegro, S.A. de C.V.
Air Georgian Ltd.                    Lineas Aereas Azteca, S.A. de C.V.
Air Haiti, S.A.                      Lineas Aereas Costarricenses, S.A.
Air India Limited                    Lineas Aereas Privadas Argentinas,
                                      S.A.
Air Japan Co., Ltd.                  LLoyd Aereo Boliviano, S.A.
Air Liberte AOM                      LTU Lufttransport-Unternehmen GmbH.
Air Malta Plc.                       Magadan Airlines
Air Marshall Islands, Inc.           Nicaraguense de Aviacion, S.A.
Air Nauru                            Nigeria Airways, Ltd.
Air Nippon Co., Ltd.                 Northwest Territorial Airways Ltd.
Air Tahiti Nui                       Olympic Airways, S.A.
Air Transat A.T. Inc.                Philippine Airlines, Inc.
Air Tungaru Limited                  Polynesian Limited
Air Ukraine                          Queen Air, Aeronaves Queen, S.A.
Alia-The Royal Jordanian Airline     Royal Aviation Express, Inc.
Ansett New Zealand Limited           Royal Aviation Group
Antigua & Barbuda Airways            Royal Tongan Airlines
 International, Ltd.
APA International Air, S.A.          Santa Barbara Airlines, C.A.
Aviacion del Noroeste, S.A. de C.V.  Servicios Aereos de Nicaragua S.A.
Aviateca, S.A.                       Skyservice Airlines Inc.
Bahamasair Holdings Limited          Southern Winds, S.A.
Balkan Bulgarian Airlines            Spanair, S.A.
Bearskin Lake Air Service, Ltd.      Surinaamse Luchtvaart Maatschappij,
                                      N.y.
Belair Airlines Ltd.                 Swiss International Air Lines Ltd.
Biman Bangladesh Airlines            TACA de Honduras, S.A. de C.V.
Bradley Air Services Limited         TACA Ecuador, S.A.
BWIA West Indies Airways Limited     TAM-Linhas Aereas S.A.
Canada 3000 Airlines Limited         Trans American Airlines, S.A.
Cayman Airways Limited               Trans North Turbo Air Limited
China Airlines, Ltd.                 Transaero Airlines
City Bird, S.A.                      Translifi Airways Limited
Compagnie Nationale de Transports    Transportes Aereos de Cabo Verde
 Aeriens
Compania de Transporturi Aeriene     Transportes Aereos del Mercosur
 Romane (Tarom)                       Sociedad Anonima
Compania Mexicana de Aviacion, S.A.  Transportes Aeromar, S.A. de C.V.
 de C.V.
Condor Flugdienst GmbH.              Tropical International Airways,
                                      Ltd.
Consorcio Aviaxsa, S.A. de C.V.      Universal Airlines, Incorporated
Dalavia Far East Airways-Khabarovsk  Uzbekistan Airways
Dutch Caribbean Airline N.y.         Virgin Atlantic Airways Limited
El Al Israel Airlines, Ltd.          Voyageur Airways Limited
Empresa Consolidada Cubana de        WestJet
 Aviacion
Ethiopian Airlines Enterprise        Windward Islands Airways
                                      International, N.y.
EVA Airways Corporation
Far Eastern Air Transport
 Corporation



    Question 16. The brief for the United States as amicus curiae in 
the petition for a writ of certiorari in the case of Chubb & Son, Inc. 
v. Asiana Airlines states, in footnote 11, that a 1991 letter from the 
Assistant Legal Adviser for Treaty Affairs opined that Singapore was a 
party to the Warsaw Convention by reason of its adherence to the Hague 
Protocol. Please provide a copy of the letter.

    Answer. Attached is a copy of the letter.

                         United States Department of State,
                                  Washington, DC, October 10, 1991.

Mr. David M. Salentine
Hong Kong Bank Building
11th Floor
160 Sansome Street
San Francisco, California 94104

    Dear Mr. Salentine

    This is in response to your letter of September 27, 1991, to Ms. 
Brandt of this office, in which you requested confirmation of certain 
states party to the Convention for the Unification of Certain Rules 
Relating to International Transportation by Air (Warsaw Convention). 
According to the records maintained in this office, Australia deposited 
an instrument of ratification to the Warsaw Convention on August 1, 
1935, and to the 1955 Hague Protocol on June 23, 1959. Singapore is a 
party to the Warsaw Convention by reason of its adherence on November 
6, 1967 to the Hague Protocol of 1955, which amends the Convention. 
Article XXI of the Hague Protocol states that ratification of the 
Protocol by any state which is not a party to the Convention shall have 
the effect of adherence to the Convention, as amended by the Protocol. 
Our records indicate that neither state has ratified Montreal Protocol 
No. 4, and that Montreal Protocol No. 4 has not yet received the 
sufficient number of ratifications to bring it into force. It should be 
noted that U.S. records on this Convention, and the Protocols that 
amend it, may not be current because the Government of Poland, and not 
the United States, is the depositary for the Warsaw Convention and its 
Protocols.
    I hope that this information will be of assistance to you.
            Sincerely,
                                           Robert E. Dalton
                         Assistant Legal Adviser for Treaty Affairs

    Question 17. In the same amicus brief, in footnote 13, there is a 
reference to a letter of the Director of the Legal Bureau of ICAO to 
the Alternate U.S. Representative on the Council of ICAO. Please 
provide a copy of the letter.

    Answer. Attached is a copy of the letter.
    
    
  Responses of Hon. John F. Turner, Assistant Secretary of State for 
   Oceans and International Environmental and Scientific Affairs, to 
  Additional Questions for the Record Submitted by Senator Joseph R. 
                               Biden, Jr.

   agreement with russian federation concerning polar bear population
    Question 1. Has your testimony today been coordinated with the 
Department of the Interior?

    Answer. Yes.

    Question 2. How will members of the U.S. section of the U.S.-Russia 
Polar Bear Commission contemplated by Article 8 be appointed?

    Answer. The Administration is now preparing implementing 
legislation that will establish the membership of the U.S. Section of 
the U.S.-Russia Polar Bear Commission. It is envisioned that members of 
the U.S. Section would be appointed by, and serve at the pleasure of, 
the President.

    Question 3. The letter from the Secretary of State in the submittal 
package indicates that ``some legislative amendments and new 
authorities will be necessary'' to ensure implementation of the 
Agreement.

          a. Please describe the amendments that are necessary to 
        implement the treaty.

          b. Has the necessary legislation been submitted to Congress 
        by the Executive Branch? If not, why not? If not, when do you 
        expect to submit it?

    Answer. Much legal authority already exists to meet the Agreement's 
obligations (e.g., the Marine Mammal Protection Act and other domestic 
legislation already provide sufficient authority to meet the 
obligations of Article 2 with respect to conserving polar bear 
habitats) . However, there are a few places where additional 
legislation will be required. For example, legislation will be needed 
to:

   Authorize implementation of restrictions on subsistence 
        hunting introduced through the U.S.-Russia Polar Bear 
        Agreement;
   Establish the U.S. Section of the U.S.-Russia Polar Bear 
        Commission; and
   Authorize appropriation of funds to carry out provisions of 
        the Agreement.

    The Administration has been coordinating this legislation among the 
various interested agencies. It will propose such legislation to 
Congress once this process is complete.

    Question 4. What are the anticipated U.S. budgetary resources 
necessary to implement the treaty and for what purposes? Please provide 
details by function (in particular, with regard to funding for the U.S. 
section, collection of scientific data on the polar bear population, 
and management and enforcement measures) and by agency.

    Answer. The Administration is currently considering draft 
implementing legislation and estimating the costs of implementing the 
Treaty. The Administration has been coordinating this legislation among 
the various interested agencies. It will propose such legislation to 
Congress once this process is complete.
    Funds appropriated to the Department of the Interior would be used 
for the U.S. portion of the proposed Joint Commission operations and to 
fund studies needed to develop sustainable harvest quotas estimates. As 
contemplated in Article 8 of the Agreement, Commission operations could 
include, for example, the actual meetings and associated preparation 
work for the Commission and work to identify polar bear habitats and to 
develop recommendations for habitat conservation measures. Studies 
necessary to develop quotas and track population status could include 
the following: aerial surveys and/or mark-recapture studies to develop 
population estimates; den surveys and collection of demographic 
information to monitor population status and trends; development of 
models to predict and evaluate sustainable harvest levels; monitoring 
of harvest levels and collection of biological samples. Appropriated 
funds would also be used to support the Alaska Nanuuq Commission in its 
role representing Alaska Native subsistence polar bear hunters and 
participation at the Joint Commission.

    Question 5. If the treaty is ratified in the coming months, are 
there funds in the fiscal year 2004 budget requests of the Departments 
of State and Interior to implement the treaty?

    Answer. Activities related to establishing and starting the Joint 
Commission may be initiated using currently available and FY 2004 
President's Request funds. Studies to determine population status and 
trends, comprehensive harvest monitoring in both countries and full 
administrative support for the Commission will, however, require 
further dedicated funding.

    Question 6. How do anticipated budgetary resources for collection 
of scientific data on the polar bear population compare to the budgets 
for that purpose in the current fiscal year and fiscal year 2002?

    Answer. Current budget levels support ongoing collection of harvest 
levels and patterns in the United States, as harvest reporting is a 
regulatory requirement. In addition, efforts to develop appropriate 
techniques for assessing population status and trends are ongoing. In 
Russia, studies based on Traditional Ecological Knowledge provide some 
insights into harvest levels and habitat use patterns. Current budget 
levels, however, do not include funding to fully implement 
comprehensive status and trends studies and gather other information 
needed to fully implement the agreement. For example, there were no 
funds programmed in the Fiscal Year 2002 or 2003 budgets to collect 
comprehensive information on the Alaska-Chukotka polar bear population 
itself.

    Question 7. Which agencies in the government of the Russian 
Federation will be responsible for implementing Russia's obligations 
under the treaty? Do we have confidence in the ability of the relevant 
agency or ministry to fully implement Russia's obligations? Does such 
agency or ministry have adequate resources to fulfill Russia's 
obligations?

    Answer. Article 8, Paragraph 4 of the Agreement stipulates: ``The 
Contracting Parties shall be responsible for organizing and supporting 
the activities of their respective national sections as well as the 
joint activities of the Commission.'' Under the Agreement the Russian 
Federation made a commitment to ``take such steps as are necessary to 
ensure implementation of this Agreement.'' (Article 10, Paragraph 1).
    The specific steps planned by the Russian government to implement 
its obligations under the Agreement are detailed in their ``normative'' 
act, which is an administrative action. Our understanding is that their 
act will be signed upon completion of U.S. domestic procedures to bring 
the Agreement into force.
    The Russian entity with primary responsibility for polar bears, and 
the implementation of this Agreement, is the Ministry of Natural 
Resources. Within the Ministry, the Federal Environmental Protection 
Agency/Department of Protected Areas and Biodiversity Conservation and 
the Russian Academy of Sciences have been involved in development of 
the Agreement and will continue to be involved in its subsequent 
implementation. On a regional level, the Wrangell Island Nature Area, 
regional government of Chukotka and the Association of Traditional 
Marine Mammal Hunters will all be involved.
    We do not know the precise funding arrangements Russia will make to 
implement this Agreement. We do, however, understand that some level of 
financial support has already been given to the Chukotka branch of the 
Pacific Ocean Institute for Fisheries and Oceanography (TINRO) to plan 
and design a harvest monitoring and enforcement program.

    Question 8. Please summarize the consultative process that was 
undertaken with stakeholders during negotiation of the treaty.

    Answer. U.S. government negotiators held close and continuing 
consultations with the involved Native groups and with State of Alaska 
officials during the negotiation of the Agreement, and their 
representatives were included in the U.S. delegation. U.S. government 
negotiators also held regular consultations with environmental groups 
interested in polar bear conservation, and an environmental group 
representative was included in the U.S. delegation. These consultations 
revealed broad support for the Agreement. We have received extensive 
correspondence from various nongovernmental organizations supporting 
the Agreement and would be glad to share copies and specifics with 
anyone interested.

    Question 9. Does the Executive Branch expect that any amendments to 
the treaty would be submitted to the Senate for advice and consent?

    Answer. We would expect to send amendments to the Agreement to the 
Senate for advice and consent. However, we note that Article 3 provides 
that the Parties may, by mutual agreement, modify the geographical area 
to which the Agreement applies.

    Question 10. Under Article 1, when read together with Article 8, 
decisions on the annual sustainable harvest level must be based on 
``reliable scientific information.'' The Article-by-Article analysis 
states that the ``Commission will not take management decisions in the 
absence of reliable data'' (internal quotes omitted).

          a. Does the government of the Russian Federation agree with 
        the statement expressed in the Article-by-Article analysis?

          b. Does the Executive Branch believe that it currently has 
        access to ``reliable scientific information'' regarding the 
        polar bear population? If not, what measures will be necessary 
        in order to obtain such information and what would be the 
        anticipated time period for doing so?

    Answer. We believe the text is clear on this point. Under Article 
VIII (7)(b), any determination of the annual sustainable harvest level 
for the Alaska-Chukotka polar bear population must be made ``on the 
basis of reliable scientific data.'' We have no indication that the 
Russian Federation does not share our interpretation that the 
``Commission will not take management decisions in the absence of 
reliable data.''
    Based on the negotiations and subsequent meetings with our Russian 
counterparts, we expect the Commission to recommend harvest limits and 
support their decision based on reliable data, some of which will be 
retrospective.
    Sufficient reliable information exists to propose initial harvest 
restrictions. Additional information will be necessary to refine and 
track the efficacy of the initial parameters. The word ``reliable'' was 
used consciously to motivate collection of good quality, current 
information for decision-making, while also satisfying the requirement 
of the 1973 Agreement on the Conservation of Polar Bears to use the 
``best available'' information.

    Question 11. Please provide a map or facsimile thereof denoting the 
geographic area covered by the Agreement under Article 3.

    Answer. Please see attached map.
    
    
    Question 12. Are the habitats of the Alaska-Chukotka polar bear 
population found only in the area covered by Article 3, or do they 
extend beyond that area?

          a. If so, what are the outer boundaries of such habitats?

          b. If so, what obligations are there under the treaty to 
        conserve polar bear habitats outside of the area covered by 
        Article 3?

    Answer. The Agreement's geographic area (Article 3) covers those 
areas subject to the national jurisdiction of the United States and the 
Russian Federation in which the Alaska-Chukotka polar bear population 
is currently found. As demonstrated in the attached map outlining the 
different polar bear stocks, the Alaska-Chukotka polar bear population 
also is found in areas of the high seas outside the jurisdiction of 
either party.
    Due to the wide range in movements and natural annual fluctuations, 
a small fraction of the population may occasionally move outside the 
zone of the Agreement. (See attached map of point locations for radio-
collared bears from this population and for the outer boundaries of 
these habitats.)
    To take into account the possibility that polar bear migratory 
patterns may change within the areas subject to each Party's national 
jurisdiction, the Agreement allows for modification of the Agreement's 
geographic scope by mutual agreement of the Parties. If the Parties 
later agree to modify the geographic scope of the Agreement, the 
obligations of the Agreement would extend to the new geographic 
boundaries.
    With respect to those areas outside either Party's jurisdiction, it 
should be noted that both Russia and the United States remain bound by 
the obligations of the 1973 agreement on the conservation of polar 
bears, which does apply in areas outside the national jurisdiction of 
the parties.


 Responses of Hon. John F. Turner to Follow-up Questions from Senator 
                          Joseph R. Biden, Jr.

   agreement with russian federation concerning polar bear population
    Question 1. The treaty was submitted to the Senate in July 2002. 
Please provide an estimate of when the implementing legislation will be 
submitted to Congress.

    Answer. The Administration anticipates submitting implementing 
legislation to Congress in September.

    Question 2. There was no response to the second part of question 7 
(previously submitted). Please answer the question.

    Answer. Question 7 reads: ``Which agencies in the government of the 
Russian Federation will be responsible for implementing Russia's 
obligatiions under the treaty? Do we have confidence in the ability of 
the relevant agency or ministry to fully implement Russia's 
obligations? Does such agency or ministry have adequate resources to 
fulfill Russia's obligations?''
    Our understanding of the Russian Government's ability to implement 
the Polar Bear Agreement is based on a series of meetings and 
correspondence with officials from the Ministry of Natural Resources, 
regional government of Chukotka and the Association of Traditional 
Marine Mammal Hunters. All parties attended a key meeting in June 2002, 
hosted by the Russian Government, to discuss progress on implementation 
of the Agreement with officials from the United States. The U.S. 
delegation was led by the Department of the Interior and included 
representatives from Alaska Native organizations. The purpose of the 
meeting was to review relative progress towards implementation and 
identify joint tasks necessary prior to formal implementation. Both 
sides expressed their continued support for the Agreement and the 
importance placed on this agreement. In reviewing relative progress 
towards implementation, Russia has completed ratification of the 
Agreement but needs to prepare implementing acts; our understanding is 
that these have now been drafted and will be signed when the U.S. 
ratification process is completed. With these implementing acts, we 
would expect Russia to have in place adequate legislative authority 
resources to implement its obligations under the Agreement. 
Participation by Alaskan and Chukotkan Natives is addressed in a 
companion Native-to-Native agreement, which is in final draft form and 
signature and is also awaiting completion of the U.S. ratification 
process.

                                 ______
                                 

  Responses of Hon. John F. Turner, Assistant Secretary of State for 
   Oceans and International Environmental and Scientific Affairs, to 
  Additional Questions for the Record Submitted by Senator Joseph R. 
                               Biden, Jr.

agreement amending treaty with canada concerning pacific coast albacore 
                    tuna vessels and port privileges
    Question 1. Has your testimony today been coordinated with the 
Department of Commerce?

    Answer. Yes.

    Question 2. The President's letter accompanying the submittal of 
the treaty indicates that legislation necessary to implement the treaty 
will be submitted to Congress.

          Please describe the amendments necessary.

          Has the necessary legislation been submitted to Congress by 
        the Executive Branch? If not, why not? If not, when do you 
        expect to submit it?

    Answer. The amendments to the 1981 Treaty will, for the first time, 
impose limits on the amount of fishing by Canadian vessels in the U.S. 
EEZ and by U.S. vessels in the Canadian EEZ. Even though it is unlikely 
that U.S. vessels fishing in the Canadian EEZ will reach these new 
limits, legislation is needed to give the Federal Government a 
statutory basis on which to ensure that U.S. fishing in Canadian waters 
does not exceed these limits.
    The Administration also believes that legislation is desirable to 
provide a sound basis for implementing certain other aspects of the 
Treaty. For example, the Treaty envisions that Canadian vessels fishing 
in the U.S. EEZ should ``hail in'' and ``hail out''--i.e., provide 
notice of their entry to and exit from U.S. waters. There has never 
been express statutory authority for implementing this feature of the 
original Treaty. With the advent of the new limitations on fishing 
under the Treaty, the ``hail in/hail out'' mechanism takes on new 
importance as a way to monitor the level of fishing by Canadian vessels 
in the U.S. EEZ.
    The necessary legislation was included in a proposed bill submitted 
to Congress to reauthorize the Magnuson-Stevens Fishery Conservation 
and Management Act.

    Question 3. How were the limits set forth in Annex C derived?

    Answer. These limits were derived as a phased-in transition to 
return Canadian fishing effort to circa 1998 fishing levels.

    Question 4. The Secretary's letter to the President in the 
submittal package states that the amendments to the Treaty are 
``noncontroversial and are widely supported by U.S. domestic 
constituent interests.'' On what is this assertion based? Please submit 
any relevant letters of support from domestic constituent interests.

          Please summarize the consultative process that was undertaken 
        with stakeholders during negotiation of the treaty.

    Answer. The assertion that the amendments to the Treaty are non-
controversial and widely supported is based upon the views expressed by 
attendees at numerous constituent meetings. Stakeholders were active 
participants during all phases of the negotiations. These stakeholders 
included representatives from industry, fishers, NGOs, state 
governments and U.S. government agencies. Many were present during 
negotiations and participated fully in decision-making.

                                 ______
                                 

  Response of Hon. John F. Turner to a Follow-up Question by Senator 
                          Joseph R. Biden, Jr.

agreement amending treaty with canada concerning pacific coast albacore 
                    tuna vessels and port privileges
    Question 1. Question 4 (previously submitted) requests any relevant 
letters of support received from domestic constituent interests. Are 
there such letters in the possession of the Department? Please provide 
them.

    Answer. The Department is not in possession of specific letters of 
support from domestic constitutent interests. However, as we have 
previously stated, these interests were well represented on the U.S. 
delegation throughout the negotiating process and informed us in that 
context of their support for the negotiated amendments to the treaty 
and its annexes.

                                 ______
                                 

  Responses of Hon. John F. Turner, Assistant Secretary of State for 
   Oceans and International Environmental and Scientific Affairs, to 
  Additional Questions for the Record Submitted by Senator Richard G. 
                                 Lugar

amendments to the treaty on fisheries between the united states and the 
              government of certain pacific island states
    Question 1. The Amendments to the Treaty on Fisheries Between the 
United States and the Governments of Certain Pacific Island States 
contain a number of references to the Convention on the Conservation 
and Management of Highly Migratory Fish Stocks in the Western and 
Central Pacific Ocean (the ``WCPFC Convention''), which the United 
States has signed but which has not yet been submitted to the Senate 
for advice and consent. Does the administration expect to submit the 
WCPFC Convention to the Senate for advice and consent?

    Answer. Yes. The United States is satisfied with the Convention 
because it establishes an effective system for ensuring the 
conservation and long-term sustainability of the highly migratory fish 
stocks of the region throughout their range and ensures that the system 
accommodates the basic interests of the states fishing in the region, 
as well as those of the coastal states of the region, in a fair and 
balanced way. The WCPFC Convention is strongly supported by the U.S 
domestic fishery managers, the U.S. tuna industry, and the 
environmental community. The Department of State intends to submit the 
Convention to the Senate for advice and consent to ratification in 
2004.

    Question 2. By ratifying this agreement, would the United States be 
assuming any obligations with respect to the WCPFC Convention?

    Answer. No. The two substantive amendments to Article 7 of the 
Treaty that relate to the WCPFC Convention pertain to linkages between 
the Treaty and the WCPFC Convention, once the latter enters into force. 
The first of these amendments, a new paragraph 2, provides that parties 
to the Treaty shall, where appropriate, consider the extent to which 
adjustments to the provisions of the Treaty or measures adopted 
thereunder may be necessary to promote consistency with measures 
adopted under the WCPFC Convention. The second, a new paragraph 3, 
provides that parties to the Treaty may cooperate to address matters of 
common concern under the WCPFC Convention. These amendments provide for 
cooperation and the promotion of consistency between the two treaties, 
without binding the United States to the WCPFC Convention or any future 
measures adopted under it prior to its entry into force for the United 
States.

                                 ______
                                 

  Responses of Hon. John F. Turner, Assistant Secretary of State for 
   Oceans and International Environmental and Scientific Affairs, to 
  Additional Questions for the Record Submitted by Senator Joseph R. 
                               Biden, Jr.

amendments to the treaty on fisheries between the united states and the 
              government of certain pacific island states
    Question 1. Had your testimony today been coordinated with the 
Department of Commerce?

    Answer. Yes.

    Question 2. Your testimony states that the ``original regime of the 
Treaty lasted for five years,'' and that it was extended in 1993 and 
2003. The Treaty does not have an expiration date. Please clarify your 
statement.

    Answer. The 1987 Treaty on Fisheries itself is of unlimited 
duration, unless it is terminated in accordance with the provisions of 
Article 12. However, associated with the Treaty is the Economic 
Assistance Agreement between the United States and the South Pacific 
Forum Fisheries Agency (FFA), which does have an expiration date. The 
Treaty and the associated Economic Assistance Agreement together 
constitute the ``regime'' referred to in the testimony. Under the 
Agreement, the United States provides funds to the Pacific Island 
Parties, through the FFA, to be used solely for economic development. 
Following the entry into force of the Treaty in 1988, the associated 
Agreement had a term of 5 years. In 1993, the United States and the 
Pacific Island Parties extended the Agreement for an additional ten 
years. The term of that Agreement expired on June 14, 2003. To serve 
U.S. interests and to maintain the stability of this successful regime, 
in conjunction with the amendments to the Treaty and Annexes, in March 
2002 the United States and the Pacific Island parties agreed to extend 
the Agreement for another term of 10 years. The United States and the 
South Pacific Forum Fisheries Agency signed the new Economic Assistance 
Agreement in March 2003.

    Question 3. The Secretary of State's letter in the submittal 
package indicates that amendments to Section 6 of the South Pacific 
Tuna Act of 1988 will be necessary to take account of the amendment to 
paragraph 2 of Article 3. Have such amendments been submitted to 
Congress? If not, when do you expect to submit them?

    Answer. The Amendment to Section 6 of the South Pacific Tuna Act 
will entail a very minor adjustment in its wording. We look forward to 
working with the relevant committees to develop the appropriate 
language in the near future.

                                 ______
                                 

  Responses of Hon. John F. Turner, Assistant Secretary of State for 
   Oceans and International Environmental and Scientific Affairs, to 
  Additional Questions for the Record Submitted by Senator Joseph R. 
                               Biden, Jr.

         stockholm convention on persistent organic pollutants
    Question 1. Has your testimony today been coordinated with the 
Environmental Protection Agency?
    Answer. Yes.

    Question 2. Were any statements made by the U.S. delegation that 
relate to the meaning of treaty terms which are not referenced or 
described in the submittal to the Senate of which the committee should 
be aware?

    Answer. I am not aware of any formal recorded statements made by 
the U.S. delegation during the negotiations that relate to the meaning 
of treaty terms that are not encapsulated in the Administration's 
understanding of the Treaty reflected in the package of materials sent 
by the President to the Senate and my own testimony before the 
Committee. If, however, there are particular treaty terms where you 
wish further clarification of the Administration's interpretation, we 
would be happy to provide it to you.

    Question 3. In the Secretary of State's letter to the President, at 
page xx of Treaty Doc. 107-5, the Executive Branch indicates that the 
United States expects to make use of the exemption permitted under note 
(ii) of Annex A ``with respect to a number of articles, such as treated 
wood'' (emphasis added). Please provide information on the other use 
exemptions that the Executive Branch intends to notify to the 
Secretariat.

    Answer. Annex A contains a list of nine chemicals that each Party 
shall prohibit and/or take necessary measures to eliminate their 
production and use. The third column of Annex A, like the third column 
in Annex B, contains a list of the specific exemptions that parties may 
take with respect to those chemicals. If a party wishes to avail itself 
of one of these specific exemptions, pursuant to Article 4, it shall on 
becoming party notify the Secretariat of the Convention, so that this 
exemption will be recorded in a Register. As noted on page ix of the 
Secretary's Letter of Submittal, ``[T]he United States does not 
anticipate the need to submit any registrations for specific exemptions 
for the substances currently in the POPs Convention.''
    The category of chemicals referred to in footnote (ii) of Annexes A 
and B are quantities of POPs occurring as constituents of articles 
manufactured or already in use before the Convention's entry into force 
for a Party. By the terms of the footnote, this is not a production and 
use specific exemption. The U.S. would notify the Secretariat as needed 
to comply with this exemption.
    The U.S. anticipates that it will make use of the exemption for 
closed-system site limited intermediates pursuant to footnote (iii) in 
Annexes A and B for the POPs chemical hexachlorobenzene. By the terms 
of the footnote, this is not a production and use specific exemption. 
The U.S. would notify the Secretariat as needed to comply with this 
exemption.

    Question 4. Article 3(5) provides that paragraphs 1 and 2 of the 
same article do not apply to ``quantities of a chemical to be used for 
laboratory-scale research or as a reference standard.''

          a. Is there a common understanding among the states present 
        at the negotiations about the scope of this exemption?

          b. What is a ``reference standard?''

    Answer. Article 3(5) was drafted to ensure that the Convention's 
restrictions on production, import and export would not have the 
unintended effect of restricting scientific research involving these 
chemicals.
    Reference standards, or reference materials, are specially prepared 
samples of chemicals or other materials that have precisely measured 
and documented properties, and are used by analytical chemistry (and 
other) laboratories to ensure that the labs are properly identifying 
chemical compounds, and for quantitative calibration of laboratory 
instruments. Reference materials are considered to be authoritative 
standard references for labs, and are a critical part of any 
laboratory's quality control/quality assurance program. The National 
Institute of Standards and Technology (NIST) conducts an extensive 
program for preparing reference materials and making them available for 
sale.
    With respect to chemicals used in lab-scale research or as a 
reference standard, the quantities of the chemical to which this 
paragraph would apply would only be those necessary to conduct the 
laboratory research in question or for use as a reference standard. 
There is a common understanding among states about this exemption.

    Question 5. The phrase ``Parties with economies in transition'' is 
used in several places in the Convention, such as the preamble, and 
Articles 4(7), 12(2), and 13(2).

          a. Is there a common understanding among the States present 
        at the negotiation about which nations would be considered 
        ``Parties with economies in transition'' for the purpose of 
        these provisions?

          b. What are the criteria for this category of states?

    Answer a. There is a common understanding among the Parties as to 
which countries this designation applies. Specifically, it is those 
countries in Eastern Europe and the former Soviet Republics that have 
been moving over the past 13 years or so from a communist economy to a 
free market economy. This designation has been used in many other 
multilateral environmental agreements.

    Answer b. There are no specific criteria established for this 
category of states.

    Question 6. Article 5(a) requires development of an action plan 
designed to ``identify, characterize, and address the release of the 
chemicals listed in Annex C and to facilitate implementation of 
subparagraphs (b) to (e).'' The letter of the Secretary of State 
indicates that the United States has existing authority under the Clean 
Air Act and Clean Water Act to develop inventories and release 
estimates.

          a. To what extent has such authority already been exercised 
        with respect to the chemicals listed in Annex C?

          b. What would be the scope of work remaining to fulfill the 
        obligations of this provision?

    Answer. The United States has more than twenty years of experience 
in dealing with the principal Annex C chemicals (dioxins and furans). 
The U.S. EPA maintains and routinely updates a national inventory of 
emissions and has successfully regulated most of the source categories 
listed in Annex C. EPA is currently working to expand the inventory to 
include the unintentionally released polychlorinated biphenyls (PCBs) 
and hexachlorobenzene (HCB).
    The core of the United States national action plan, due two years 
from the entry into force of the Convention, will focus on dioxin and 
an accompanying strategy. Some expansion of this effort will be 
necessary to cover the other pollutants (unintentional PCBs and HCB).

    Question 7. The Executive Branch recommends an understanding with 
regard to Article 6(d)(ii) and the meaning of ``low'' persistent 
organic pollutant content.

          a. Why is this understanding necessary? Is it not self-
        evident that the recommendations of the Conference would not be 
        binding, given the various qualifications set forth in 
        paragraph (d) and (d)(ii)?

          b. Was there a statement made by other delegations at the 
        negotiating session that necessitates this understanding? If 
        so, please elaborate.

    Answer a. The understanding is required to avoid any ambiguity 
created by the language in Article 6(2) authorizing the Conference of 
the Parties ``to define'' low POPs content. While the Administration 
agrees with the conclusion in the question that the work of the 
Conference of the Parties would not be legally binding, an 
understanding clarifying and memorializing this position is a prudent 
way to put on record the U.S. position and to help avoid future 
misunderstandings among the Parties on this important issue.

    Answer b. The text in Article 6 was one of the final elements of 
the Convention to be negotiated. We are not aware of statements made by 
other delegations arguing that the definitions provided by the 
Conference of the Parties would be legally binding on the Parties.

    Question 8. Are there any existing ``international rules, standards 
and guidelines'' with regard to what constitutes low persistent organic 
pollutant content within the meaning of Article 6(d)(ii)?

    Answer. We are not aware of any existing international rules, 
standards and guidelines on what constitutes low POPs content. However, 
the Conference of the Parties to the Basel Convention is in the process 
of drafting technical guidelines on the environmentally sound 
management of persistent organic pollutant wastes, with a view to 
finalizing them by the end of 2004. The Intergovernmental Negotiating 
Conference for the POPs Convention has been monitoring this exercise 
and the POPs Secretariat is working with the Easel Secretariat and the 
U.N. Environment Program Division of Technology, Industry and Economics 
to try and ensure that any such guidelines meet the needs of the POPs 
Convention.

    Question 9. Does the United States have a position with regard to 
what constitutes low persistent organic pollutant content within the 
meaning of Article 6(d)(ii)?

    Answer. Article 6.1(d)(ii) must be read in context with Article 
6.2, which directs cooperation between the Stockholm Conference of 
Parties and the appropriate bodies of the Basel Convention. Development 
of ``low content'' values was one of a number of agenda items discussed 
at the Basel Convention Open Ended Working Group meeting April 28-May 
2, 2003. No set of consensus values was developed at that meeting, and 
discussion will be ongoing. Values that are eventually determined to be 
``low content'' will in all likelihood vary by chemical because the 
POPs chemicals have different toxic potencies, and can be effectively 
treated to different levels.
    Regarding U.S. ability to implement any values that are eventually 
adopted, it is useful to note that current U.S. hazardous waste 
regulations regulate all the POPs chemicals except Mirex either as 
waste constitutents \1\ or when product chemicals are designated as 
waste. Because they are regulated as hazardous waste constituents, we 
understand the Environmental Protection Agency has already established 
treatment levels for all of the POPs chemicals except Mirex. The Agency 
will bring its information on treatment methods and treatability levels 
for POPs chemicals to the Basel Convention discussion of what 
constitutes ``low content'' under the Stockholm Convention.
---------------------------------------------------------------------------
    \1\ This is not to say that all POPs Chemicals are regulated in all 
wastes in which they occur. Some are regulated as waste constituents of 
specific listed waste streams, regardless of concentration, while 
others are regulated based on their concentration in a waste, under the 
Toxicity Characteristic, and still others are only regulated as of 
specification product designated as waste. However, regulation as 
hazardous waste by any of these methods provides the Agency the 
opportunity to establish required treatment levels.

    Question 10. How will the membership of the Persistent Organic 
Pollutants Review Committee be determined? Is it expected that the 
---------------------------------------------------------------------------
United States will always be a member? Why?

    Answer. The membership of the Persistent Organic Pollutants Review 
Committee will be set out in its terms of reference. These terms are 
still the subject of negotiations and will be adopted at the first 
meeting of the Conference of Parties (COP) after the Convention has 
entered into force. This underlines the importance of ensuring that the 
U.S. is among the first 50 governments to ratify the Convention and 
among the Parties at the first COP. Consistent with our experience with 
other technical bodies of this type, we expect that the United States 
will be a member of the Committee once we become a Party. Besides the 
fact that the United States is a major chemicals producer and user, 
other countries value U.S. technical and regulatory expertise in this 
field and desire our input on technical issues of this kind.

    Question 11. The Secretary of State's letter states that Article 9 
does not ``require the exchange of any information'' (emphasis in 
original). What then, is the meaning of Article 9(1)? Why is the phrase 
``shall facilitate or undertake the exchange of information'' 
considered non-binding? Please provide a brief legal analysis.

    Answer. Article 9(1) requires parties to facilitate or undertake 
the exchange of information relevant to the reduction or elimination of 
production, use, and release of POPs and on alternatives to POPs. The 
Article thus affords the United States two alternative paths to 
satisfying its obligations. It could comply with Article 9 by 
undertaking the exchange of information. In some instances, however, 
this approach might give rise to potential conflicts with U.S. laws 
regarding the protection of confidential business information (CBI) . 
Article 9(1), however, in the alternative, would be satisfied by the 
facilitation of the exchange of information, without actually requiring 
any such exchange. This could be done, for example, by encouraging 
industry to waive any CEI protection that might attach to information 
and disclose it where it goes to the economic and socials costs of 
alternatives or other relevant information regarding POPs.

    Question 12. Article 9(5) provides that for the ``purposes of the 
Convention, information on health and safety of humans and the 
environment shall not be regarded as confidential'' but the ``other 
information'' exchanged by the Parties under the Convention shall be 
protected as mutually agreed by the Parties.

          a. How does the Executive Branch intend to implement this 
        provision?

          b. What does the Executive Branch understand to be the scope 
        of ``information on the health and safety of humans and the 
        environment?'' Is the term ``environment'' as used in this 
        paragraph modified by ``health and safety''?

    Answer a. The United States would intend to implement this 
provision by facilitating the exchange of relevant information, 
including information on health and safety of humans and the 
environment. Since the United States is not required to exchange any 
information under Article 9 (see Question 11), the fact that the 
Convention treats information on health and safety of humans and the 
environment as non-confidential will not conflict with U.S. laws 
regarding the protection of confidential business information. To the 
extent that there is a desire to exchange other information that is 
confidential with other Parties, the U.S. would need to work out 
mutually agreed procedures.

    Answer b. In the first sentence of this paragraph, we understand 
the scope of the phrase ``information on health and safety of humans 
and the environment'' to cover two separate categories of information: 
(a) information on the health and safety of humans; and (b) information 
on the environment.

    Question 13. Under the Pollution Prevention Act of 1990 (42 U.S.C. 
13101 et seq.), certain firms are required to submit on an annual basis 
a ``toxic chemicals source reduction and recycling report,'' including 
information on source reduction practices (42 U.S.C. 13106). Does 
information that is withheld from public release under the authority of 
42 U.S.C. 13106(e) relate, in any respect, to health and safety of 
humans or the environment?

    Answer. EPA has informed us that the only type of information that 
can be withheld under 42 U.S.C. section 13106(e) is chemical identity 
information. In the place of such information, the reporter must 
provide the generic class or category of the chemical. The reporter, 
moreover, may only withhold the chemical identity if it is a trade 
secret. To do this, the reporter must demonstrate that ``disclosure of 
the chemical identity] is likely to cause substantial harm to the 
competitive position of the reporter.'' Given this statutory regime, 
EPA does not believe that information withheld from public release 
under 42 USC Sec. 13106(e) would relate to the health and safety of 
humans or the environment. In any event, the United States does not 
interpret the POPs Convention to require the United States to undertake 
to disclose or exchange such information as it relates to reporting 
under the Pollution Prevention Act.

    Question 14. Does the United States expect to be present and voting 
at every meeting of the Conference of the Parties?

    Answer. After becoming a party to the Convention, the United States 
expects to be present at every meeting of the Conference of the Parties 
and to actively participate in decisions taken by the Conference of the 
Parties.

    Question 15. What are the anticipated U.S. budgetary resources 
necessary to implement the treaty and for what purposes?

    Answer. The State Department supports the operation of the 
Secretariat of the Stockholm Convention through the International 
Organization and Programs (IO&P) account. We expect that as the 
agreement matures, the cost of the Secretariat will be approximately 
$4-5 million annually; the United States typically aims to pay, on a 
voluntary basis, approximately 22% of budgets of multilateral 
environmental agreements to which we are party.
    Separately, the Convention has provisions to provide financial 
assistance to developing countries through the Global Environment 
Facility (GEF) as the agreement's interim funding mechanism. The United 
States has pledged a total of $500 million to the GEF for 2003-2006 to 
cover all GEF-related projects, including those pertaining to Stockholm 
Convention. The GEF has set a nominal program allocation of over $200 
million from 2003-2006 to support POPs projects.

    Question 16. Please summarize the consultative process that was 
undertaken with stakeholders during negotiation of the treaty.

    Answer. The Executive Branch engaged in extensive discussions with 
industry, environmental, tribal, and State interests throughout the 
negotiations. Meetings were typically held with these groups before, 
during, and sometimes after each of the negotiating sessions. This 
stakeholder outreach will continue for current and future meetings of 
the Stockholm Convention.

    Question 17. Does the Executive Branch intend to make a declaration 
under Article 25(4) upon deposit of the instrument of ratification?

    Answer. Yes. The U.S. delegation was instrumental in ensuring that 
the Convention contained this language, known as the ``opt-in'' 
approach, which will bind parties making a declaration to the 
provisions regarding a new chemical added to the Convention's first 
three annexes (or any other amendments to those annexes) only upon 
affirmative ratification, acceptance, approval or accession by the 
declaring party.

    Question 18. Will the Executive Branch await the enactment of the 
necessary implementing legislation prior to depositing the instrument 
of ratification?

    Answer. As is customary in U.S. treaty practice, the United States 
does not consent to be bound by treaties until it has in place the 
necessary domestic legal authorities to comply with the treaty's 
obligations. Thus, in the POPs case, the United States will not deposit 
its instrument of ratification until such time as the necessary 
implementing legislation has been enacted.

    Question 19. In the Secretary of State's letter in the submittal 
package, the Secretary indicates that certain amendments to Toxic 
Substances Control Act and the Federal Insecticide, Fungicide, and 
Rodenticide Act are needed to ``ensure the United States' ability to 
implement provisions of the Convention.'' The Secretary also states 
that ``[o]ther targeted changes may also be sought to ensure our 
ability to participate effectively in negotiations regarding proposed 
amendments to add chemicals, and to ensure that the United States is 
able to ratify such amendments in a timely manner, if it so chooses'' 
(emphasis added).
          What is the Executive Branch's current position on the need 
        for the type of amendments referenced in the second sentence 
        above?

    Answer. For the reasons stated in the Secretary of State's letter, 
the Administration supports implementing legislation that includes 
legislative provisions authorizing domestic regulations in light of 
proposed amendments to add chemicals under the Convention. At the same 
time, however, these provisions are not necessary for the United States 
to become party to the Convention since, for example, the United States 
would plan to invoke the ``opt-in'' provision in Article 25(4) (See 
Response to Question 17).
    An example of a targeted change to ensure the ability of the United 
States to participate effectively in negotiations to add new chemicals 
to Convention's annexes is a proposal in the Administration bill 
introduced during the last Congress, which sought authority to collect 
information on existing manufacturing, processing, distribution in 
commerce for export, use and disposal of substances proposed for 
addition. We believe that such information will be crucial ensuring 
that the United States can protect its interests during the process of 
negotiating proposed amendments to add chemicals to Convention annexes.

                                 ______
                                 

 Responses of Hon. John F. Turner to Follow-up Questions from Senator 
                          Joseph R. Biden, Jr.

         stockholm convention on persistent organic pollutants
    Question 1. The answer to Question 3 (previously submitted) is 
unresponsive. The Secretary's letter, at page xx of Treaty Doc. 107-5, 
states that the ``United States expects to make use of this exemption 
(in note ii to Annex A) with respect to a number of articles, such as 
treated wood'' (emphasis added). The response to question 3 states the 
``U.S. would notify the Secretariat as needed to comply with this 
exemption.''

          a. Does the United States know today what other articles will 
        need to be notified to the Secretariat under note ii to Annex 
        A? If so, what are they?

          b. Please answer the same two questions set forth in part (a) 
        of this question with regard to articles that may be notified 
        under note iii to Annex A.

    Answer a. Although we have not completed a final examination of 
this issue at this time, we intend to do so before making a 
notification to the Secretariat. We have reviewed the matter and 
believe there are a number of uses that may be the subject of such a 
notification as described in the following paragraph.
    A number of the POPS termaticides were used to treat structures 
before their registrations were cancelled.
    Specifically, aldrin, dieldrin, chlordane, and heptachlor may 
remain in use in structures that had previously been treated with these 
chemicals. Heptachlor has also been used for fire ant control in 
electrical cable boxes and some heptachlor may remain in such cable 
boxes. Endrin was used as an avicide on bird perches and there may 
still be perches with endrin residue. Mirex was historically used as an 
industrial fire retardant and there may still be in use certain 
articles containing mirex.

    Answer b. As noted previously, the United States anticipates it 
will make use of the closed-system site-limited intermediate provision 
of Annex A note iii in the case of hexachlorobenzene. This is the only 
notification for note iii that we are aware of at this time; however, 
we intend to review this issue further before making a notification to 
the Secretariat.

    Question 2. Question 15 (previously submitted) asks for information 
about anticipated U.S. budgetary resources necessary to implement the 
treaty and for what purpose. It was not limited to the Department of 
State budget or contributions for the Secretariat. Are there any budget 
implications for the Environmental Protection Agency? Please provide 
relevant estimates.

    Answer. We understand from EPA that there would likely be a 
marginal increase in the staff and related costs associated with 
implementing the POPs treaty's provisions. This would include costs 
associated with, in particular: (1) preparing Federal Register notices 
related to the possible addition of new chemicals and following 
through, as appropriate, on necessary regulatory actions, (2) preparing 
a national implementation plan and a national action plan as called for 
under the Convention, (3) compiling the necessary information related 
to reporting provisions under the convention, and (4) providing or 
facilitating technical assistance to developing countries and countries 
with economies in transition independent of our efforts through the 
GEF. A more precise response to this question is not possible until the 
Convention finalizes discussions on issues such as guidance for 
national implementation plans and reporting formats, and the precise 
nature of the U.S. procedural approach is defined with regard to new 
chemicals proposed for addition to the Convention in the future.

                                 ______
                                 

  Responses of Hon. John F. Turner, Assistant Secretary of State for 
   Oceans and International Environmental and Scientific Affairs, to 
  Additional Questions for the Record Submitted by Senator Russell D. 
                                Feingold

         stockholm convention on persistent organic pollutants
    Question 1. As a Senator from the Great Lakes Region, I support the 
POPs Convention, and believe international efforts to restrict 
persistent organic pollutants stemmed, in part, from our longstanding 
efforts with the Canadian government to reduce toxics loading into the 
Great Lakes. I want, therefore, to make certain that the Stockholm 
Convention can be fully and effectively implemented domestically.
    Assistant Secretary Turner, you are certainly aware that, in order 
to meet our commitments under the Convention we will need to pass 
domestic legislation that addresses how EPA will regulate additional 
POPs. Will you review for me the administration's commitment to such 
legislation, and your progress in working with the Senate to develop 
legislation that will allow for the addition of new chemicals that is 
consistent with the provisions of the convention? Does the 
administration presently have a time frame for concluding these 
discussions?

    Answer. The Administration is firmly committed to the Stockholm 
Convention on POPs, and to working with Congress to ensure that 
legislation is passed that will allow the United States to ratify this 
important agreement. Significant progress has been made over the past 
year on the implementing legislation. The Administration has been 
working over this time with the Congress to prepare a legislative 
package that will allow the United States to implement the treaty 
provisions, including the provisions on new chemicals (however, as 
discussed in question #2, such provisions are not in a strict sense 
required by the Convention) We are committed to continuing our work 
with the Congress to ensure a successful outcome is achieved from these 
discussions. We do not have a specific timeline for completion of 
negotiations, but we believe it is important that implementing 
legislation is completed and the United States ratify the agreement by 
the time important decisions are taken at the first Conference of the 
Parties, expected to be in early 2005.

    Question 2. Do you agree that U.S. implementing legislation must 
include a mechanism for adding future chemicals that are found to be a 
concern under the Convention?

    Answer. The Administration is currently working with the Congress 
to develop an adding mechanism to be included in implementing 
legislation. There are several options on this subject that are the 
subject of ongoing discussions on the implementing legislation between 
the Administration and the Congress.
    However, it should be noted that the legislative provisions on 
future chemicals referred to in the question are not strictly necessary 
to allow the United States to ratify the Convention since, for example, 
the United States would plan to invoke the ``opt-in'' provision in 
Article 25(4), allowing it to become bound by amendments adding new 
chemicals only where it affirmatively consents to be bound by such 
amendments. Moreover, all states have the right under Article 22(3)(b) 
to decline to consent to amendments adding new chemicals, which, even 
in the absence of Article 25(4), could be invoked if such an amendment 
would require additional legislation or regulatory action.

    Question 3. Many countries have already ratified this agreement, 
and international implementation discussions are ongoing. Have any 
second rounds of particular substances yet been discussed, or will the 
Convention need to be fully in force before such determinations are 
made?

    Answer. When the Stockholm Convention was adopted, the negotiating 
States agreed that before the Convention entered into force they would 
focus on issues directly related to implementing existing obligations 
under the treaty for the 12 persistent organic pollutants (POPs) in the 
Annexes. Therefore, there has not been a ``second round'' of proposed 
substances under discussion within the Convention. The Convention has 
to enter into force before the formal body that reviews proposals on 
potential additions, the POPs Review Committee, convenes to consider 
proposals.

                                 ______
                                 

  Responses of Hon. John F. Turner, Assistant Secretary of State for 
   Oceans and International Environmental and Scientific Affairs, to 
Additional Questions for the Record Submitted by Senator Barbara Boxer 
     on Behalf of Herself and Senators Jeffords, Kerry and Sarbanes

         stockholm convention on persistent organic pollutants
    Question 1. On Page XXII of the Message from the President, 
Secretary of State Powell lays out certain amendments to FIFPA and TSCA 
that will be sought, then states that ``other targeted changes may also 
be sought to ensure our ability to participate effectively in 
negotiations regarding proposed amendments to add chemicals, and to 
ensure that the United States is able to ratify such amendments in a 
timely manner, if it so chooses'' (emphasis added). Does the 
administration continue to seek such targeted changes? And, if so, what 
are these ``targeted'' changes?

    Answer. For the reasons stated in the Secretary of State's letter, 
the Administration supports implementing legislation that includes 
legislative provisions authorizing domestic regulations in light of 
proposed amendments to add chemicals under the Convention. At the same 
time, however, these provisions are not necessary for the United States 
to become party to the Convention since, for example, the United States 
would plan to invoke the ``opt-in'' provision in Article 25(4), 
ensuring that it would become bound by amendments adding new chemicals 
only where it affirmatively consents to be bound by such amendments.
    In terms of implementing legislation, there are several options on 
this subject that have been proposed, which are the subject of 
discussions between the Administration and the Congress.

    Question 2. As I understand the position of the administration, it 
is that the United States will not deposit its Instrument of 
Ratification until and unless implementing legislation is enacted that 
will enable the United States to implement all the Convention 
obligations. Is this understanding correct?

    Answer. As is customary in U.S. treaty practice, the United States 
does not consent to be bound by treaties until it has in place the 
necessary domestic legal authorities to comply with the treaty's 
obligations. Thus, in the POPs case, the United States will not deposit 
its instrument of ratification until such time as the necessary 
implementing legislation has been enacted.

    Question 3. Please clarify the administration's position as to 
whether it is seeking changes to ensure the ability of the United 
States to participate effectively in negotiations to add new chemicals 
to the POPs list and, if not, how you fully plan to implement the POPs 
convention without such changes?

    Answer. See response to Question 1.

    Question 4. The President, in the Letter of Transmittal of May 6, 
2002, notes that the POPs Convention ``includes obligations on . . . a 
science-based procedure to add new chemicals that meet defined 
criteria.'' Is this still the view of the administration?

    Answer. This is still the view of the Administration. The United 
States was heavily involved in the negotiations of these provisions and 
ensured that a science-based approach was the framework for the review 
process under the Convention. However, many key details in the process 
for adding new chemicals must still be worked out. This underlines the 
importance of ensuring that the U.S. is among the first 50 governments 
to ratify the Convention and among the parties at the first COP.

    Question 5. Do you consider this Convention to be a static 
agreement or a dynamic one? Would you agree that an essential component 
to ensure that it remains dynamic is the science-based procedure built 
into the Convention to nominate, assess, and add additional chemicals 
with POPs characteristics beyond the initial dirty dozen?

    Answer. We consider the agreement to be a dynamic one that will 
evolve over time to include other chemicals that are not currently 
listed. One of the major U.S. negotiating objectives, which we believe 
was successful, was to ensure that the framework for assessing 
proposals for new chemicals was a science-based process. However, there 
are also many key details in this process that must be worked out among 
the members of the COP. At the same time, however, the United States 
also negotiated the ``opt-in'' provision in Article 25(4) to ensure its 
ability to weigh the results of this process on a case-by-case basis 
and to reserve its right to decide whether to become bound by changes 
adding new chemicals to the Convention.

    Question 6. The Secretary of State's Letter of Transmittal, which 
forms an integral part of the President's Letter of Transmittal of May 
6, 2002, states that the United States has ``already taken substantial 
action to address the risks associated with those POPs chemicals 
currently covered by the Convention,'' but that other countries still 
use these substances. Is it correct that this means that most of the 
work to cease production and use of the original twelve intentionally-
produced POPs will be in countries other than the United States?

    Answer. Much of the work to be done is in other countries, but the 
United States and many other developed countries are assisting others 
by sharing our experiences and by providing technical and financial 
assistance.

    Question 7. Is it correct that the real work for the United States 
regarding banning production and use of POPs chemicals will come if 
additional substances with POPs characteristics are added to the 
Convention through an open and transparent science-based procedure? Is 
it not correct that this means that the United States must be ready, 
willing, and able to work with other nations of the world on proposals 
to add chemicals beyond the original twelve POPs chemicals in a timely 
manner if it is going to be able to convince other nations that we take 
this Convention seriously?

    Answer. There is a considerable amount of work to do globally to 
work with other countries to ensure they are able to phase out or 
reduce the production, use and/or release of these substances. We 
provide considerable technical and financial assistance to help 
countries with this often-difficult task. There will be additional 
challenges for the United States and others as more chemicals are added 
to the Convention.
    One important aspect of the Convention is that it will evolve over 
time as chemicals are added to the Annexes in the future. We intend to 
be a constructive part of that science-based, evolutionary process. The 
most important factor in convincing other countries that we take the 
Convention seriously is for the United States to act now to ratify it. 
Once we become a party to the Convention, we would expect other 
countries to seriously and thoughtfully consider the considerable 
technical and scientific resources that the United States can bring to 
the discussion of possible additional chemicals.

                                 ______
                                 

  Responses of Hon. John F. Turner, Assistant Secretary of State for 
   Oceans and International Environmental and Scientific Affairs, to 
  Additional Questions for the Record Submitted by Senator Joseph R. 
                               Biden, Jr.

   rotterdam convention on the prior informed consent procedure for 
   certain hazardous chemicals and pesticides in international trade
    Question 1. Has your testimony today been coordinated with the 
Environmental Protection Agency?

    Answer. Yes.

    Question 2. President Clinton submitted the treaty to the Senate. 
In so doing, he recommended that ratification be subject to an 
understanding regarding Article 12. Does the Bush Administration 
support the proposed understanding without modification?

    Answer. Yes.

    Question 3. Will the Executive Branch await the enactment of the 
necessary implementing legislation prior to depositing the instrument 
of ratification?

    Answer. As is customary in U.S. treaty practice, the United States 
does not consent to be bound by treaties until it has in place the 
necessary domestic legal authorities to comply with all treaty 
obligations. Thus, in the case of the Rotterdam Convention, the United 
States will not deposit its instrument of ratification until such time 
as the necessary implementing legislation has been enacted.

    Question 4. How will the membership of the Chemical Review 
Committee provided for under Article 18(6) be determined? Is it 
expected that the United States will always be a member? Why?

    Answer. The membership of the Chemical Review Committee will be set 
out in its terms of reference to be adopted by the first meeting of the 
Conference of the Parties (COP). We expect that the United States would 
be a member of the Committee once we become a Party as we have the 
world's most advanced chemicals regulatory system as well as a large 
share of the global chemicals industry, and can provide substantial 
technical expertise. Furthermore, Article 18(6)(a) requires that the 
Committee membership be based on ``equitable geographic distribution.'' 
Should the COP adopt the same geographic structure that has been used 
in the voluntary interim PIC procedure as expected, the U.S. would have 
one of the two seats in the North America region which consists of only 
two countries (Canada and the United States).

    Question 5. What are the anticipated U.S. budgetary resources 
necessary to implement the treaty and for what purposes?

    Answer. The State Department supports the operation of the 
Secretariat of the Rotterdam Convention through the International 
Organizations and Programs (IO&P) account. We expect that as the 
agreement matures, the cost of the Secretariat will be approximately 
$3.5-$5 million annually; the United States typically aims to pay, on a 
voluntary basis, approximately 22% of budgets of multilateral 
environmental agreements to which we are party. Operational costs are 
for the Convention's Secretariat and technical assistance/capacity 
building.

    Question 6. Does the United States expect to be present and voting 
at every meeting of the Conference of the Parties?

    Answer. After becoming a party to the Convention, the United States 
expects to be present at every meeting of the Conference of the Parties 
and to actively participate in decisions taken by the Conference of the 
Parties.

    Question 7. Please summarize the consultative process that was 
undertaken with stakeholders during negotiation of the treaty.

    Answer. The Executive Branch engaged in extensive discussions with 
industry and environmental interests during the negotiations of the 
treaty. Meetings were typically held with these groups before, during, 
and sometimes after each of the treaty negotiating sessions. We expect 
stakeholder outreach to continue as necessary in connection with 
Conferences of the Parties and other meetings of the Rotterdam 
Convention.

                                 ______
                                 

 Response of Hon. John F. Turner to a Follow-up Question from Senator 
                          Joseph R. Biden, Jr.

 rotterdam convention concerning hazardous chemicals and pesticides in 
                          international trade
    Question 1. Question 5 (previously submitted) asks for information 
about anticipated U.S. budgetary resources necessary to implement the 
treaty and for what purpose. It was not limited to the Department of 
State budget or contributions for the Secretariat. Are there any budget 
implications for the Environmental Protection Agency? Please provide 
relevant estimates.

    Answer. We understand from EPA that there would likely be a 
marginal increase in the staff and related costs associated with 
implementing the Rotterdam Convention's provisions. This would include 
costs associated with, in particular: (1) preparing Federal Register 
notices related to the possible addition of new chemicals and following 
through, as appropriate, on necessary regulatory actions, (2) preparing 
notifications of final regulatory actions pursuant to Article 5, (3) 
preparing import responses pursuant to Article 10, (4) processing 
export notifications pursuant to Article 12, (5) implementing the 
information exchange provisions of Article 14, and (G) providing 
technical assistance to developing countries and countries with 
economies in transition pursuant to Article 16.

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