[Senate Executive Report 109-13]
[From the U.S. Government Publishing Office]



109th Congress                                              Exec. Rept.
                                 SENATE
 2d Session                                                      109-13

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



 
    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)

                                _______
                                

                 March 30, 2006.--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. 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.

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