[Senate Executive Report 109-13]
[From the U.S. Government Publishing Office]
109th Congress Exec. Rept.
SENATE
2d Session 109-13
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PROTOCOL OF 1997 TO AMEND THE INTERNATIONAL CONVENTION FOR THE
PREVENTION OF POLLUTION FROM SHIPS, 1973, AS MODIFIED BY THE PROTOCOL
OF 1978 RELATING THERETO (TREATY DOC. 108-7)
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March 30, 2006.--Ordered to be printed
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Mr. Lugar, from the Committee on Foreign Relations,
submitted the following
R E P O R T
[To accompany Treaty Doc. 108-7]
The Committee on Foreign Relations, to which was referred
the Protocol of 1997 to Amend the International Convention for
the Prevention of Pollution from Ships, 1973, as Modified by
the Protocol of 1978 Relating Thereto (hereinafter the
``Protocol of 1997''), signed by the United States on December
22, 1998, having considered the same, reports favorably thereon
and recommends that the Senate give its advice and consent to
ratification thereof, as set forth in this report and the
accompanying resolution of ratification.
CONTENTS
Page
I. Purpose..........................................................1
II. Background.......................................................2
III. Summary of Key Provisions of the Protocol........................2
IV. Implementing Legislation.........................................5
V. Committee Action.................................................5
VI. Committee Recommendation and Comments............................5
VII. Text of Resolution of Advice and Consent to Ratification.........6
I. Purpose
The International Convention for the Prevention of
Pollution from Ships, 1973, as modified by the Protocol of 1978
Relating Thereto (hereinafter the ``MARPOL Convention''), is a
multilateral agreement regulating pollution from ships. The
Protocol of 1997 amends the MARPOL Convention to add Annex VI,
Regulations for the Prevention of Air Pollution from Ships.
II. Background
The MARPOL Convention is a multilateral agreement governing
accidental and operational discharges of pollution from ships.
It consists of a framework agreement setting forth general
obligations and several annexes that relate to particular
sources of marine pollution from ships. Annexes I and II are
mandatory for all MARPOL Convention parties and cover,
respectively, the transport of oil and the transport of harmful
substances carried in bulk. The other four annexes are
optional: Annex III, which addresses the transport of harmful
substances in packaged form; Annex IV, which regulates ship-
generated sewage; Annex V, which governs ship-generated
garbage; and Annex VI, which regulates air pollution from
ships.
The United States ratified the Protocol of 1978 (which
incorporates with modifications the 1973 Convention) along with
Annexes I and II on August 12, 1980. The MARPOL Convention and
Annexes I and II entered into force for the United States on
October 2, 1983. On December 30, 1987, the United States
ratified Annex V, which entered into force on December 31,
1988. On December 3, 1991, the United States ratified Annex
III, which entered into force on July 1, 1992. The United
States is not a party to Annex IV, which entered into force on
September 27, 2003.
The Protocol of 1997, adding a new Annex VI, was signed by
the United States on December 22, 1998, and transmitted to the
Senate for advice and consent to ratification on May 15, 2003
(see Treaty Doc. 108-7). The Protocol entered into force on May
19, 2005, and currently has 31 parties.
III. Summary of Key Provisions of the Protocol
A detailed article-by-article discussion of the Protocol of
1997 may be found in the Letter of Transmittal from the
Secretary of State to the President, which is reprinted in full
in Treaty Document 108-7. A summary of the key provisions of
the Protocol is set forth below.
The Protocol of 1997 would add Annex VI to the MARPOL
Convention. Annex VI seeks to reduce air pollution from ships
at sea and in port by: limiting the emission of nitrogen oxides
(NOX) from large marine diesel engines; governing
the sulphur content of marine diesel fuel; prohibiting the
deliberate emission of ozone-depleting substances; providing a
framework for regulating the emission of volatile organic
compounds during transfer of cargoes between tankers and
terminals; and setting international standards for shipboard
incinerators and fuel oil quality. In addition, Annex VI
establishes similar requirements for platforms and drilling
rigs at sea and contains provisions for the establishment of
special SOX (sulphur oxide) Emission Control Areas.
APPLICATION OF ANNEX VI
Annex VI is comprised of 19 regulations containing the
specific obligations of the parties. Pursuant to Articles 3 and
5 of the MARPOL Convention and Article 3 of the Protocol, Annex
VI regulations would apply to all ships entitled to fly the
flag of or operating under the authority of a party to the
Protocol, as well as to ships of non-parties to the Protocol as
may be necessary to ensure that no more favorable treatment is
given to such ships. Ratification of the Protocol of 1997,
however, would not prohibit the United States from implementing
more stringent regulations on ships entering its ports or
internal waters.
Article 3 of the MARPOL Convention exempts warships, naval
auxiliaries and other ships owned or operated by a state and
used in governmental non-commercial service from the
application of the provisions of its annexes. In negotiating
the Protocol of 1997, the parties agreed that, under Article
3(3) of the MARPOL Convention, such ships will be exempt from
the application of the provisions of Annex VI. Parties to
MARPOL, however, are required to take appropriate measures not
impairing the operations or operational capabilities of such
ships owned or operated by it, to ensure that such ships act in
a manner consistent, so far as is reasonable and practicable,
with Annex VI. The executive branch has confirmed to the
committee that the United States already meets this standard
with respect to such vessels.
REGULATION 12: EMISSIONS OF OZONE-DEPLETING SUBSTANCES
Regulation 12 of Annex VI prohibits deliberate emissions of
ozone-depleting substances that are controlled under the 1987
Montreal Protocol on Substances that Deplete the Ozone Layer (a
treaty to which the United States is party), including halon
compounds and five chlorofluorocarbon compounds (CFCs). New
installations containing ozone-depleting substances are
prohibited on all ships, with one exception: new installations
containing hydro-chlorofluorocarbons (HCFCs) are permitted
until January 1, 2020.
REGULATION 13: NITROGEN OXIDE EMISSIONS
Regulation 13 of Annex VI limits NOX emissions
from marine diesel engines with a power output of more than 130
kW to levels that the negotiating States in 1997 agreed as
being achievable by the year 2000. These limits, which require
the use of readily available emission control technology, apply
to any such engine installed on a ship constructed on or after
January 1, 2000, and to any such engine that undergoes a major
conversion after that date. The NOX Technical Code
attached to Resolution 2 of the 1997 MARPOL Conference contains
testing and certification procedures for the engine
NOX limits.
REGULATION 14: SULPHUR OXIDE EMISSIONS
Regulation 14 of Annex VI controls emissions of sulphur
oxide (SOX) by imposing a global cap of 4.5% m/m
(4.5% sulphur mass to total mass or 45,000 parts per million)
on the sulphur content of fuel oil used on ships for combustion
and calls on the International Maritime Organization to monitor
the worldwide average sulphur content of residual fuel.
Regulation 14 also contains provisions for the
establishment of special ``SOX Emission Control
Areas'' (SECAs). Ships operating in these areas must use fuel
that does not exceed 1.5% m/m (15,000 ppm). Alternatively, a
ship can use an exhaust gas cleaning system or another
technological method to limit SOX emissions. Annex
VI designates the Baltic Sea as a SECA and provides a mechanism
by which the IMO may designate other SECAs. The executive
branch has indicated that, upon ratification of Annex VI, the
United States may seek the establishment of one or more SECAs
in the United States pursuant to the procedures set out in
Appendix III to Annex VI. The Environmental Protection Agency
is currently conducting studies to evaluate proposed SECAs
along the Pacific, Atlantic, and Gulf Coasts of the United
States.
REGULATION 16: ON-BOARD INCINERATION
Regulation 16 of Annex VI establishes requirements for the
incineration of certain materials on board ship, including
prohibiting incineration of contaminated packaging materials
and polychlorinated biphenyls (PCBs).
2005 AMENDMENTS
On July 22, 2005, the Marine Environment Protection
Committee of the International Maritime Organization (IMO)
adopted several amendments (mostly technical) to Annex VI and
the NOX Technical Code pursuant to the procedures in
Article 16 of the MARPOL Convention. Most significantly, these
amendments include recognition of a new SECA. In March 2000,
the IMO approved the North Sea area as a new SECA, with a view
to its adoption following entry into force of the Protocol of
1997. The 2005 amendments would add this new North Sea area
SECA to Regulation 14. Pursuant to paragraph 7 of Regulation
14, the reduced SOX emission standards will become
effective for vessels operating in the North Sea area on
November 22, 2007, one year following entry into force of the
amendments.
Under the simplified amendment process in Article
16(2)(f)(iii) of the MARPOL Convention, these amendments to
Annex VI will be deemed to have been accepted on May 22, 2006,
unless prior to that date not less than one-third of the
parties, or parties the combined merchant fleets of which
constitute not less than 50 percent of the gross tonnage of the
world's merchant fleet, have communicated to the IMO their
objection to the amendments. Article 6(3) of the Protocol of
1997 provides that if a party deposits an instrument of
ratification after the date on which an amendment to the
Protocol is deemed to have been accepted in accordance with
Article 16 of the MARPOL Convention, it shall become a party to
the Protocol as amended. Therefore, should the United States
deposit its instrument of ratification for the Protocol after
May 22, 2006, the United States will be a party to the Protocol
as amended. Conversely, should the United States deposit its
instrument of ratification prior to May 22, 2006, it would have
the option of communicating to the IMO an objection to the
amendments before that date.
Given this situation, the committee questioned the
executive branch concerning its intention with regard to these
amendments should the President deposit an instrument of
ratification for the Protocol of 1997 prior to May 22, 2006.
The executive branch confirmed that it does not intend to
object to these amendments, which would then enter into force
on November 22, 2006, six months following their acceptance.
The committee supports this decision.
IV. Implementing Legislation
The Protocol of 1997 will require implementing legislation.
The executive branch submitted proposed legislation to Congress
on October 6, 2005. That legislation is under consideration by
the Committee on Commerce, Science, and Transportation.
V. Committee Action
The committee held a public hearing on the Protocol of 1997
on September 29, 2005, where it heard testimony from
representatives of the Department of State and the
Environmental Protection Agency (S. Hrg. 109-324).\1\ On March
14, 2006, the committee considered the Protocol of 1997 and
ordered it favorably reported by voice vote, with a quorum
present and without objection, with the recommendation that the
Senate give its advice and consent to its ratification, subject
to an understanding and two declarations contained in the
resolution of advice and consent to ratification.
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\1\ A transcript of this hearing and questions and answers for the
record may be found on the Internet at http://www.access.gpo.gov/
congress/senate/senate11sh109.html
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VI. Committee Recommendation and Comments
The Committee on Foreign Relations believes that the
Protocol of 1997 is in the interest of the United States and
urges the Senate to act promptly to give advice and consent to
its ratification, subject to the understandings and declaration
contained in the resolution of advice and consent.
The committee recommends that the Senate's advice and
consent be made subject to two understandings and one
declaration, which are contained in sections two and three of
the resolution of advice and consent. Section two of the
resolution contains two understandings. The first understanding
confirms that international law does not prohibit parties to
the Protocol from requiring vessels entering their ports or
internal waters to comply with stricter emission standards or
fuel oil requirements. The executive branch recommended a
similar understanding regarding only the emission control
limits for nitrogen oxides. Insofar as this principle applies
more broadly, and based on discussions with the executive
branch (and with its support), the committee has broadened this
understanding to reference all emission standards and fuel oil
requirements contained in the Protocol.
The second understanding concerns Regulation 15 of the
Protocol, which relates to volatile organic compounds.
Regulation 15 does not establish emission standards. Rather, it
contains certain requirements with which a party must comply if
it chooses to set such standards. Consistent with the
recommendation of the executive branch, the committee has
included an understanding that clarifies the scope of this
regulation.
The declaration in section three of the resolution relates
to the emission control limits for nitrogen oxides
(NOX) contained in Regulation 13. The executive
branch recommended that the United States make a declaration
expressing its support for an amendment to Annex VI that would
strengthen these NOX emission control limits in
keeping with new technological developments. The committee
agrees with this recommendation.
Finally, the committee wishes to emphasize to the executive
branch that the simplified amendment process for certain
matters under MARPOL necessitates that it keep the committee
informed about pending amendments that are subject to this
process. When a prior Annex to the MARPOL Convention was
considered by the committee in the 102nd Congress, the
executive branch assured the committee that it would be
``apprised of all pending amendments, to ensure that they are
of a technical nature.'' Unfortunately, that pledge was not
fulfilled. The executive branch has committed to improve the
process of consulting with the committee on such amendments.
VII. Text of Resolution of Advice and Consent
to Ratification
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO UNDERSTANDINGS AND
DECLARATION
The Senate advises and consents to the ratification of the
Protocol of 1997 to Amend the International Convention for the
Prevention of Pollution from Ships, 1973, as modified by the
Protocol of 1978 Relating Thereto (hereinafter in this
resolution referred to as the ``Protocol of 1997''), signed by
the United States on December 22, 1998 (T. Doc 108-7), subject
to the understandings and declaration in sections 2 and 3.
SECTION 2. UNDERSTANDINGS
The advice and consent of the Senate under section 1 is
subject to the following understandings, which shall be
included in the United States instrument of ratification:
(1) The United States of America understands that the
Protocol of 1997 does not, as a matter of international
law, prohibit Parties from imposing, as a condition of
entry into their ports or internal waters, more
stringent emission standards or fuel oil requirements
than those identified in the Protocol.
(2) The United States of America understands that
Regulation 15 applies only to safety aspects associated
with the operation of vapor emission control systems
that may be applied during cargo transfer operations
between a tanker and port-side facilities and to the
requirements specified in Regulation 15 for
notification to the International Maritime Organization
of port State regulation of such systems.
SECTION 3. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration, which shall be included
in the United States instrument of ratification:
The United States of America notes that at the time
of adoption of the Protocol of 1997, the NOX
emission control limits contained in Regulation 13 were
those agreed as being achievable by January 1, 2000, on
new marine diesel engines, and further notes that
Regulation 13(3)(b) contemplated that new technology
would become available to reduce on-board
NOX emissions below those limits. As such
improved technology is now available, the United States
expresses its support for an amendment to Annex VI,
that would, on an urgent basis, revise the agreed
NOX emission control limits contained in
Regulation 13 in keeping with new technological
developments.