U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1

99–118

" ! SENATE 107TH CONGRESS

2d Session

TREATY DOC.

2002

107–5

STOCKHOLM CONVENTION ON ORGANIC POLLUTANTS

MESSAGE

FROM

THE PRESIDENT OF THE UNITED STATES

TRANSMITTING

STOCKHOLM CONVENTION ON PERSISTENT ORGANIC POLLUTANTS, WITH ANNEXES, DONE AT STOCKHOLM, MAY 22–23, 2001

MAY 7, 2002.—Convention was read the first time, and together with

the accompanying papers, referred to the Committee on Foreign Relations and ordered to be printed for the use of the Senate

(III)

LETTER OF TRANSMITTAL

THE WHITE HOUSE, May 6, 2002.

To the Senate of the United States:

With a view to receiving the advice and consent of the Senate to

ratification, I transmit herewith the Stockholm Convention on Persistent Organic Pollutants, with Annexes, done at Stockholm, May

22–23, 2001. The report of the Secretary of State is also enclosed

for the information of the Senate.

The Convention, which was negotiated under the auspices of the

United Nations Environment Program with the leadership and active participation of the United States, commits Parties to take significant steps, similar to those already taken by the United States,

to eliminate or restrict the production, use, and/or release of 12

specified persistent organic pollutants (POPs). When I announced

that the United States would sign the Convention, I noted that

POPs chemicals, even when released abroad, can harm human

health and the environment in the United States. The Convention

obligates Parties to take measures to eliminate or restrict the production, use, and trade of intentionally produced POPs, to develop

action plans to address the release of unintentionally produced

POPs, and to use best available techniques to reduce emissions

from certain new sources of unintentionally produced POPs. It also

includes obligations on the treatment of POPs stockpiles and

wastes, as well as a science-based procedure to add new chemicals

that meet defined criteria.

The United States, with the assistance and cooperation of nongovernmental organizations and industry, plays an important

international leadership role in the safe management of hazardous

chemicals and pesticides. This Convention, which will bring over

time, an end to the production and use of certain of these toxic

chemicals beyond our borders, will positively affect the U.S. environment and public health. All relevant Federal agencies support

early ratification of the Convention for these reasons, and we understand that affected industries and interest groups share this

view.

I recommend that the Senate give prompt and favorable consideration to the Convention and give its advice and consent to ratification, subject to the understandings described in the accompanying report of the Secretary of State, at the earliest possible

date.

GEORGE W. BUSH.

(V)

LETTER OF SUBMITTAL

AUGUST 1, 2001.

The PRESIDENT,

The White House.

THE PRESIDENT: I have the honor to submit to you the Stockholm

Convention on Persistent Organic Pollutants, with Annexes, done

at Stockholm, May 22–23, 2001. In accordance with your announcement on April 19, the United States signed the Convention, subject

to ratification, on May 23, 2001, along with 90 other States. I recommend that the Convention be transmitted on a priority basis to

the Senate for its advice and consent to ratification.

Chemical synthesis and production advances have been responsible for many important benefits currently enjoyed by modern society. However, as scientific knowledge about these substances has

increased, it has become clear that the continued production and

use of certain chemicals and pesticides with particular traits carries with it inherent risks and poses both environmental and

health hazards. The chemicals of global concern that are the subject of this Convention are often referred to as persistent organic

pollutants (POPs). These harmful chemicals share four basic characteristics that cause them to adversely affect human health and

the environment: (1) they are toxic; (2) they persist in the environment for long periods of time; (3) they circulate globally through

the atmosphere and oceans to regions far from their source of origin; and (4) they biomagnify as they move up through the food

chain, accumulating in the fatty tissue of higher organisms, including in other foods consumed by Americans.

There is evidence of continuing transboundary deposition of

POPs chemicals far from their sources. Indigenous people in Alaska

and elsewhere in the United States are particularly at risk due to

their reliance on a subsistence diet. This Convention will reduce or

eliminate certain POPs that continue to be released outside the

United States and which pose a threat to U.S. public health and

the environment.

The United States has already taken substantial action to address the risks associated with those POPs chemicals currently covered by the Convention. Many other countries, including some developing countries, have also taken steps to address these risks.

Nonetheless, certain of these chemicals continue to be used and

produced, mostly in developing countries.

The Convention commits Parties to take significant steps, similar

to those already taken by the United States, to eliminate or restrict

the production, use and/or release of specified POPs. It initially

identifies twelve chemicals, often referred to as the ‘‘dirty dozen.’’

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Several of these are intentionally produced for use either as pesticides or industrial chemicals (e.g., DDT); some are produced and

released as incidental byproducts of other processes (e.g., dioxin).

Under the Convention, all of the intentionally produced POPs except DDT are slated for elimination of production and use. In recognition of the humanitarian need to use DDT for disease vector

control, notably to fight malaria, the Convention allows its use for

this purpose, while encouraging the development of effective and

economically viable alternatives. The Convention obligates Parties

to develop action plans to address the release of byproduct POPs

and to use best available techniques to reduce emissions from certain new sources of such POPs. It also imposes controls on the handling of POPs wastes and on trade in POPs chemicals. Additionally, it includes a science-based procedure to add new chemicals

that meet defined criteria to the lists of POPs subject to the Convention.

The Convention does not differentiate in its basic obligations between developing and developed countries. The Convention does establish a flexible framework to provide technical and financial assistance to help developing countries implement their commitments.

The United States played a leading role in negotiating the Convention, which was developed under the auspices of the United Nations Environment Program (UNEP). Throughout the negotiations,

the Department of State and interested Federal agencies, including

the Environmental Protection Agency (EPA), the Department of

Commerce, the United States Trade Representative, the Department of Health and Human Services, and the Department of Agriculture, consulted with the Congress, industry and environmental

organizations. The relevant Federal agencies support expeditious

ratification of the Convention by the United States. The Convention has the strong support of U.S. industry and environmental organizations.

The following analysis reviews the Convention’s key provisions

and sets forth the proposed understandings of the United States

with respect to several elements.

PREAMBLE

The preamble highlights the key reasons for global action on Persistent Organic Pollutants (POPs), including their capacity for longrange transport and bioaccumulation; their potential negative effects on human health and the environment, and the particular

risks they pose for developing countries, Arctic ecosystems, indigenous communities (through POPs contained in their traditional

foods), women and, through them, future generations. The preamble also includes language on precaution, which is consistent

with the U.S. view that the Convention embodies a precautionary

approach to protect health and the environment.

ARTICLE 1—OBJECTIVE

Article 1 identifies the objective of the Convention: to protect

human health and the environment from persistent organic pollutants.

VII

ARTICLE 2—DEFINITIONS

There are only three definitions in this Article: ‘‘Party’’; ‘‘Regional

economic integration organization’’; and ‘‘Parties present and voting’’. These definitions are self-explanatory and consistent with

usage in other multilateral environmental agreements to which the

United States is a party. It should be noted that, with respect to

obligations that require Parties to take action on chemicals listed

in Annexes A, B or C, the term ‘‘Party’’ includes only those Parties

that are bound by particular listings for chemicals that are added

in the future. In order to make this definition clear, it is recommended that the following understanding be included in the

U.S. instrument of ratification:

The United States understands that the term ‘‘Party’’ as

defined in Article 2 includes only those Parties that are

bound by particular listings for chemicals that are added

in the future to Annexes A, B or C with respect to the obligations to take action on those chemicals.

ARTICLE 3—MEASURES TO REDUCE OR ELIMINATE RELEASES FROM

INTENTIONAL PRODUCTION AND USE

Article 3, together with Annexes A and B, contains core obligations in the Convention regarding controls and intentionally produced POPs chemicals. Paragraph 1 requires each Party to

‘‘[p]rohibit and/or take the legal and administrative measures necessary to eliminate’’ the production and use of chemicals listed in

Annex A, and to ‘‘restrict’’ production and use of chemicals listed

in Annex B. Annexes A and B include 10 intentionally produced

pesticides and industrial chemicals. Aldrin, chlordane, dieldrin,

endrin, heptachlor, hexachlorobenzene, mirex, toxaphene, and

PCBs are placed in Annex A. DDT is placed on Annex B. Time-limited country-specific exemptions are allowed for the use, production

and trade of some chemicals in Annex A. There are also certain

general exemptions for chemicals listed on Annexes A and B, and

language addressing the special case of PCBs in Annex A and DDT

in Annex B, described below.

The United States is in large part already fulfilling the obligations in paragraph 1, either because it has taken the legal and administrative measures necessary to eliminate production and use of

the listed chemicals, or because nearly all production and use of

these chemicals have otherwise ceased. For example, none of the

listed chemicals are currently registered under U.S. law for use as

pesticides in the United States.

At the same time, certain limitations to the existing authorities

under the main U.S. statutes in this area—namely, the Federal Insecticide, Fungicide, and Rodenticide Act (‘‘FIFRA’’), 7 U.S.C. § 136

et. seq., and the Toxic Substances Control Act (‘‘TSCA’’), 15 U.S.C.

§ 2601 et seq.—exist with regard to implementation of discrete obligations in Article 3. For example, U.S. law currently does not provide unambiguous authority to prevent production of all POPs

chemicals for export. In addition, two of the listed POPs chemicals

(DDT and HCB) theoretically are eligible for production under

TSCA under certain circumstances without prior notice, although

no such production is known to occur in the United States. New

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production and use of the other listed POPs chemicals theoretically

could be proposed in the future, and their prohibition cannot be

guaranteed under existing law. Targeted, legislative authority

therefore will be sought to ensure the U.S. ability to implement in

full the obligations on all production and use of the listed POPs.

Paragraph 2 places restrictions on the import and export of

chemicals listed in Annexes A and B. Paragraph 2(a) requires each

Party to take measures to ensure that a chemical is imported only

for environmentally sound disposal or for a use or purpose permitted under Annex A or B. Paragraph 2(b) restricts exports both

to other Parties and to non-Parties to the Convention. Annex A and

B chemicals can be exported only: (i) for environmentally sound

disposal; (ii) to another Party permitted to use the chemical under

Annexes A or B; or (iii) to a State not Party to the Convention, provided that the non-Party has provided an annual certification to

the exporting Party. That certification must address the non-Party’s intended use of the chemical and its commitment to minimize

or prevent releases of the chemical and to dispose of any wastes in

an environmentally sound manner. In addition, exports of chemicals listed in Annex A are prohibited to both Parties and non-Parties, except for environmentally sound disposal, once there are no

longer any specific exemptions in effect for any Party regarding

that chemical.

The United States presently is unaware of any U.S. production

or export of the listed POPs chemicals that conflicts with Article

3 obligations. Nevertheless, additional legislative authority is required to ensure the United States’ ability to implement effectively

the export-related obligations in paragraph 2. As noted above, for

example, FIFRA does not provide authority to prohibit all exports

of POPs pesticides from the United States. Additional authority

will also be sought to address certain narrow exceptions in FIFRA

and TSCA with respect to the import-related obligations in paragraph 2.

Paragraph 3 requires each Party that has regulatory and assessment schemes for new pesticides or industrial chemicals to take

measures to regulate, with the aim of preventing, the production

and use of new POPs. The United States will implement this obligation through measures, including some that are already in place,

aimed at preventing new persistent, bioaccumulative, and toxic

(‘‘PBT’’) chemicals from entering commerce.

Paragraph 4 requires Parties that have regulatory and assessment schemes for chemicals currently in use to take into consideration, ‘‘where appropriate,’’ Annex D criteria when assessing such

pesticides or chemicals. (Annex D sets out criteria for listing a new

POPs chemical, which consist of persistence, bioaccumulation, potential for long-range environmental, transport, and toxicity.) The

United States is already fulfilling this requirement under existing

programs and EPA may under its current authorities expand the

extent to which it takes such factors into account when assessing

existing chemicals or pesticides.

Paragraph 5 provides that the control measures on production,

use, and import and export set out in paragraphs 1 and 2 do not

apply to chemicals used for lab-scale research or as a reference

standard.

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Paragraph 6 requires any Party that takes a specific exemption

under Annexes A or B, or uses a chemical under an allowable purpose under Annex B, to ‘‘take appropriate measures’’ to prevent or

minimize human exposure and release into the environment of that

POP during its production and use. The United States does not intend to seek a specific exemption or utilize an allowable purpose

for any of the currently listed chemicals.

ARTICLE 4—REGISTER OF SPECIFIC EXEMPTIONS

As noted above, any State may, upon becoming a Party and by

notification to the Secretariat, register for one or more types of specific exemptions listed in Annex A or B. The purpose of such exemptions is to allow individual countries to take specific exemptions according to particular needs that might otherwise prevent

them from joining the Convention, without the need for more categorical differential of obligations among Parties. The United

States does not anticipate the need to submit any registrations for

specific exemptions for the substances currently in the POPs Convention.

Article 4 establishes a Register to identify Parties that have

taken such specific exemptions. It also specifies the process for new

registrations, and for their withdrawal and termination. Importantly, it also provides that all registrations will be subject to a review process, the details of which will be developed at the first

meeting of the Conference of the Parties (‘‘COP’’). Unless an earlier

date is indicated in the Register by a Party, or an extension is

granted by the COP, registrations of specific exemptions shall expire five years after the date of entry into force of the obligation

with respect to a particular chemical.

Paragraph 1 specifies that these procedures do not apply to provisions in Annex A or Annex B that may be exercised by all Parties. This includes, for example, provisions regarding use of PCBs

in Part I and Part II of Annex A, provisions regarding chemicals

that occur in articles manufactured or already in use, and provisions that allow Parties to use a chemical as a closed-system, sitelimited intermediate in the production of other chemicals. The Article also does not apply to ‘‘acceptable purposes’’ identified in Annex

B (at present limited to DDT).

Paragraph 9 is an important ‘‘sunset’’ provision, providing that

once there are no longer any Parties registered for a particular specific exemption, no new registrations for that exemption may be

made.

ARTICLE 5—MEASURES TO REDUCE OR ELIMINATE RELEASES FROM

UNINTENTIONAL PRODUCTION

Article 5 contains obligations with respect to releases of chemicals listed in Annex C, and includes a goal of ‘‘continuing minimization and, where feasible, ultimate elimination.’’ This is consistent

with existing U.S. law under the Clean Air Act, 42 U.S.C. § 7401

et seq., and the Clean Water Act, 33 U.S.C. § 1251 et seq. With respect to the term ‘‘feasible,’’ negotiators agreed that this term included both technical and economic considerations.

Paragraph (a) requires development by each Party of an action

plan addressing releases of Annex C chemicals. The plan must inVerDate 11-MAY-2000 02:30 May 10, 2002 Jkt 005300 PO 00000 Frm 00009 Fmt 7633 Sfmt 6602 E:\HR\OC\TD005.XXX pfrm04 PsN: TD005
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clude, among other things, development of source inventories and

release estimates. The United States has existing authority to develop such inventories under the Clean Air Act, which is routinely

used for developing inventories and release estimates of the kind

described in this paragraph, and under the Clean Water Act with

respect to releases of the pollutants to waters of the United States.

Paragraph (b) requires each Party to promote measures to

achieve meaningful reduction in POPs releases or in elimination of

sources of POPs releases. The United States will implement this

obligation through the Pollution Prevention Act, 42 U.S.C. § 13101

et seq., which already requires EPA to establish a source reduction

program and engage in other activities that promote reduction of

releases.

Paragraph (c) requires each Party to promote the use of substitute or modified materials, products and processes to prevent

formation and release of Annex C chemicals. The United States

will implement this obligation through the Pollution Prevention

Act, which currently authorizes the promotion of reduction of

sources of POPs releases through ‘‘technology modifications, process or procedure modifications, reformulation or redesign of products, substitution of raw materials,’’ as well as through other authorities already provided in the Clean Air Act and Clean Water

Act.

Paragraph (d) requires each Party to require the use of best

available techniques (‘‘BAT’’) for new sources it identifies as warranting such action in its action plan, and in any case for new

sources in the categories listed in Part II of Annex C (for example,

municipal waste combustors), no later than four years after entry

into force of the Convention for that Party. The United States already has sufficient authority under the Clean Air Act, with respect to emissions to air, and under the Clean Water Act, with respect to discharges to water, to implement these obligations. In

most cases, moreover, the United States has regulations already in

place for these source categories that will fully implement the BAT

requirement.

Paragraph (e) applies an obligation ‘‘to promote’’ the use of BAT

on existing sources in the categories listed in Part II, as well as to

such other categories of new and existing sources to the extent that

a Party identifies the need for action regrading these sources as

part of this action plan. Those additional categories may include

categories listed in Part III if the United States considers them appropriate for inclusion. The United States already has sufficient existing statutory authority with respect to all of the required source

categories (i.e., those listed in Part II), as well as most of the additional source categories under Part III, under the Clean Air Act

and Clean Water Act.

Paragraph (f) provides definitions of the terms ‘‘best available

techniques,’’ ‘‘best environmental practices’’ and ‘‘new source.’’

These definitions are consistent with U.S. law. Paragraph (g) allows Parties to use ‘‘release limit values’’ or ‘‘performance standards’’ in place of best available techniques. This paragraph provides

an alternative means to satisfy the requirements under paragraphs

(d), (e) and (f).

XI

ARTICLE 6—MEASURES TO REDUCE OR ELIMINATE RELEASES FROM

STOCKPILES AND WASTES

Article 6, which contains obligations regarding the treatment of

POPs wastes, generally requires that Parties take certain specified

measures to ensure that such wastes are managed in a manner

protective of human health and the environment. The United

States has sufficient existing authority under FIFRA, TSCA, the

Comprehensive Environmental Responsibility, Compensation and

Liability Act, 42 U.S.C. § 9601 et seq., and the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq., (‘‘RCRA’’) to implement almost all of the obligations in Article 6.

Paragraph 1(a) requires each Party to develop ‘‘appropriate strategies’’ for identifying both stockpiles containing chemicals in Annexes A or B, and also products and articles in use, and wastes,

containing chemicals in Annexes A, B or C. To the extent that

stockpiles containing chemicals in Annexes A or B exist in the

United States, the United States is already implementing strategies to identify them through existing policy programs (for example, the ‘‘Clean Sweeps’’ program). The United States can also implement this obligation through authority under FIFRA section 6(g)

and TSCA section 8(a), which provide authority to require certain

persons to notify EPA of their possession and respective amounts

of certain cancelled pesticides and other chemicals.

Paragraph 1(b) requires each Party to identify ‘‘to the extent

practicable’’ and ‘‘on the basis of the strategies referred to in paragraph 1(a),’’ stockpiles containing chemicals listed in either Annex

A or B. The United states will implement this obligation using the

authorities noted above.

Paragraph 1(c) requires the appropriate management of stockpiles in a safe, efficient and environmentally sound manner. Existing U.S. laws, notably FIFRA section 19(a) and TSCA section 6,

provide sufficient authority for the United States to implement this

obligation through labeling and other means to ensure that stockpiles of pesticides and industrial chemicals listed in Annex A or B

are handled, transported, and stored in an environmentally sound

manner. This paragraph also provides that stockpiles, once they

are no longer permitted to be used or exported in accordance with

other provisions of the Convention, shall be deemed to be waste

subject to paragraph (1)(d).

Paragraph 1(d)(i) requires each Party to take appropriate measures for the treatment of wastes containing or contaminated with

a chemical listed in Annex A, B or C. It requires that such POPs

wastes be handled, collected, transported and stored in an environmentally sound manner. The United States will implement these

obligations through existing waste disposal requirements in place

under RCRA and TSCA.

Paragraph 1(d)(ii) requires each Party to take appropriate measures so that POPs wastes are treated using destruction or irreversible transformation, or otherwise disposed of in an environmentally

sound manner when destruction or irreversible transformation does

not represent the environmentally preferable option or the POPs

content is low. The United States will implement these obligations

XII

through existing waste disposal requirements in place under RCRA

and TSCA.

Paragraph 1(d)(iii) requires that POPs wastes must not be permitted to be subject to operations that may lead to the recycling,

recovery or alternative use of the POPs content. The United States

is not aware of any existing operations involving the recycling or

recovery of POPs in the United States. There is nothing in current

U.S. law, however, that clearly authorizes the regulation of POPs

wastes in accordance with this obligation. To guarantee that the

United States will be able to implement effectively this obligation,

additional legislative authority will be sought to address recycling

and recovery of POPs chemicals under FIFRA and TSCA authorities.

Paragraph 1(d)(iv) requires that POPs wastes must not be exported or imported without taking into account relevant international standards. The United States already has in place requirements that will fulfill this obligation. For example, EPA has established requirements under RCRA for the export (including transport) of hazardous wastes such that exporters and transporters

must comply with requirements of international agreements between the United States and receiving countries.

Paragraph 1(e) requires each Party to endeavor to develop appropriate strategies for identifying sites contaminated by chemicals

listed in Annex A, B or C. It does not require remediation of sites,

but requires that, if undertaken, it be performed in an environmentally sound manner. The United States already has existing

authority under RCRA and CERCLA to develop appropriate strategies for identifying sites contaminated by chemicals listed in these

annexes, and to ensure that necessary remediation will be performed in an environmentally sound manner.

Paragraph 2 directs the COP to cooperate with the appropriate

bodies of the Basel Convention on the Control of Transboundary

Movements of Hazardous Wastes and their Disposal to develop certain guidance relating to the handling of POPs waste. Paragraph

2(c) calls on the COP to work to establish, in cooperation with the

Basel COP, ‘‘as appropriate,’’ the concentration levels of the chemicals listed in Annexes A, B and C in order to define the low POP

content referred to in paragraph 1(d). The criteria of what constitutes ‘‘low’’ POP content is an important factor in determining

whether ‘‘other disposal’’ is permitted under paragraph 1(d). The

United States does not interpret paragraph 2(c), however, as giving

a mandate to the COP to set a definition of the term ‘‘low’’ that

would be binding on Parties through paragraph 1(d): indeed, paragraph 1(d) makes it clear that meaning of ‘‘low’’ is to be determined

‘‘taking into account international rules, standards and guidelines,

including those that may be developed pursuant to paragraph 2.

*** ’’ In order to clarify and emphasize this view, it is recommended that the following understanding be included in the

U.S. instrument of ratification:

It is the understanding of the United States of America

that any work completed by the Conference of the Parties

under paragraph 2(c) of Article 6 would not be considered

binding on Parties, but rather would constitute non-binding guidance on the meaning of the term ‘‘low’’ that Parties

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would take into account in accordance with paragraph 1(d)

of Article 6.

ARTICLE 7—IMPLEMENTATION PLANS

The Article calls upon Parties to develop and endeavor to implement a plan to implement its obligations under the Convention,

and contains provisions regarding the transmittal, review and update of such plans. Plans are required to be submitted within two

years of entry into force of the Convention for that Party. It also

states that Parties shall, wherever appropriate, cooperate directly

or through global, regional and subregional organizations, and consult with their national stakeholders to facilitate the development,

implementation and updating of the implementation plans.

ARTICLE 8—LISTING OF CHEMICALS IN ANNEXES A, B AND C

As noted above, the Convention is intended to be a dynamic instrument, under which additional chemicals that meet certain key

criteria may be added to the regime in the future. Article 8, together with Annexes D, E and F and Article 22 (on amendments

to annexes), set out the procedure by which those additional chemicals will be considered and added.

Paragraphs 1 and 2 set out the procedure for proposing the addition of a new chemical and the Secretariat’s initial information

screening process. Paragraphs 3 and 4 set forth the process by

which the Persistent Organic Pollutant Review Committee (the

Committee) reviews whether the proposal satisfies the screening

criteria in Annex D. The criteria are: persistence, bioaccumulation,

toxicity, long-range transport, and evidence of adverse effects. The

Committee shall review and apply the proposal ‘‘in a flexible and

transparent way, taking all information provided into account in an

integrative and balanced manner.’’ If the Committee believes that

the screening criteria are satisfied, it makes the proposal available

and invites Parties and observers to submit information specified

in Annex E (concerning risk). If not, the Committee sets the proposal aside.

Paragraph 5 allows any Party to resubmit a proposal that the

Committee has set aside under paragraph 4. If the Committee sets

it aside again, the Party may appeal that decision to the COP. The

COP may then decide, ‘‘based on the screening criteria in Annex D’’

and taking other information into account, that the proposal shall

proceed. This formulation was sought by the United States in order

to tie the COP’s decision to the scientific criteria.

Paragraph 6 provides for a further review of proposals that proceed beyond the screening stage. The Committee prepares a draft

risk profile in accordance with Annex E, makes that draft available

and receives comments on it, and then completes the risk profile.

Paragraph 7 sets out a key decision point for the Committee: on

the basis of the risk profile, the Committee must decide 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.’’ If the Committee so decides, the proposal shall proceed to the next stage: a

risk management review in accordance with Annex F, including an

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evaluation of the possible associated control measures for the

chemical, as well as costs and alternatives.

If the Committee decides that the chemical does not meet this

standard, the proposal is set aside. The text provides that ‘‘[l]ack

of full scientific certainty shall not prevent the proposal from proceeding.’’ This provision merely allows the Committee to conclude

that ‘‘global action is warranted’’ such that the proposal should proceed to the risk management review, even where it lacks ‘‘full’’ scientific certainty. It does not allow the Committee to move forward

where it lacks any scientific certainty; it must still determine that

the chemical is ‘‘likely as a result of its long-range environmental

transport to lead to significant adverse human health and/or environmental effects.’’ This formulation is consistent with risk-based

decision-making by chemical regulators under existing U.S. law.

Paragraph 8 provides an appeal process for Parties similar to

that in paragraph 5. If, following this process, the Committee sets

the proposal aside once again, the Party may appeal the decision

to the COP, which ‘‘based on the risk profile’’ may decide the proposal shall proceed to a risk management review.

Paragraph 9 provides that the Committee shall, ‘‘based on the

risk profile * * * and the risk management evaluation,’’ make a

recommendation whether the chemical should be listed in Annexes

A, B and/or C. In the end, the COP, ‘‘taking the account of the recommendations of the Committee, including any scientific uncertainly, shall decide, in a precautionary manner’’ whether to list the

chemical and associated control measures. This is consistent with

U.S. approaches to precaution in chemicals regulation, which provide for risk management decisions even when there is lack of full

scientific certainty.

ARTICLE 9—INFORMATION EXCHANGE

Article 9 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.

Paragraph 5 provides further that information on the health and

safety of humans and the environment is not confidential, but that

Parties that exchange other information shall protect any confidential information as mutually agreed. Because this Article does not

require the exchange of any information, it does not conflict with

U.S. law regarding the protection of confidential business information (‘‘CBI’’).

ARTICLE 10—PUBLIC INFORMATION, AWARENESS AND EDUCATION

Article 19 contains a number of obligations to promote and facilitate the provision of available POPs-related information to the public. Most of these provisions are obligations that the United States

already is implementing through various public awareness campaigns and programs.

Paragraph 2 requires each Party ‘‘within its capabilities’’ to ensure that the public has access to ‘‘the public information’’ referred

to in paragraph 1. Paragraph 1 concerns ‘‘available information

persistent organic pollutions.’’ Although release of all available information on POPs could theoretically require release of certain

health and safety information that would be protected as CBI

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under U.S. law, the obligation in paragraph 2 applies only to ‘‘the

public information referred to in paragraph 1.’’ (emphasis added)

Thus, this requirement excludes CBI data, which is not public.

Paragraph 5 requires Parties to give sympathetic consideration

to developing mechanisms for the collection and dissemination of

information on estimates of annual quantities of POPs released or

disposed. EPA, with its Toxic Release Inventory (TRI) program, requires release and disposal reporting on most of the Annex A, B

and C chemicals.

ARTICLE 11—RESEARCH, DEVELOPMENT AND MONITORING

Article 11 requires the Parties collectively, at the national and

international level, to encourage or undertake ‘‘appropriate research, development, monitoring and cooperation pertaining to’’

POPs. The United States, through existing research programs and

international cooperation programs, is already undertaking or providing support for POPs research, cooperation and monitoring.

ARTICLE 12—TECHNICAL ASSISTANCE

Article 12 concerns the provision of technical assistance to developing country Parties and Parties with economies in transition to

help them implement their obligations under the Convention. Paragraph 3 specifies that the technical assistance to be provided, ‘‘as

appropriate and as mutually agreed,’’ by developed country Parties

shall include assistance for capacity-building related to implementation of the obligations under the Convention. This language gives

developed country Parties considerable flexibility to decide the

scope of their collective technical assistance obligation. Paragraph

5 obligates the Parties collectively to establish ‘‘arrangements,’’ including centers for capacity-building and transfer of technology.

The United States will implement its obligations under this article through a range of ongoing bilateral and multilateral aid and

assistance programs, including, for example, programs administered by USAID, EPA and other agencies, as well as through contributions to the Global Environment Facility (GEF) and other multilateral organizations. Such programs and contributions will require appropriations.

ARTICLE 13—FINANCIAL RESOURCES AND MECHANISMS

This article, and paragraph 2 in particular, reflect the commitment of developed country Parties collectively to provide financial

resources to assist developing country Parties to meet their commitments under the Convention. This obligation is qualified in significant respects. Developed country Parties as a collective are to

provide ‘‘new and additional’’ financial resources to meet the agreed

full incremental costs of implementing measures by developing

country Parties which fulfill their obligations under the Convention. Both the costs and the implementing measures must be

agreed between the recipient Party and an entity participating in

the mechanism established in paragraph 6. The mechanism in

paragraph 6 will consist of, at least for an interim period, the GEF.

Paragraph 6 also reiterates the requirement of paragraph 2 that

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contributions to the mechanism be ‘‘additional’’ to other financial

transfers.

Paragraph 7 provides that the COP shall provide guidance to the

mechanism regarding policies for access to financial resources, promotion of multiple-source funding, and modalities for determining

the amount of funding necessary and available to implement the

Convention, and for providing Parties with assistance for needs assessment.

The Convention does not create either a new fund or mandate

the funding of recurrent and non-incremental costs, and does not

establish new or specific assessments. The United States will implement this obligation through its contributions to the GEF and

other multilateral, regional and bilateral entities that provide financial assistance. Such contributions will require an appropriation.

ARTICLE 14—INTERIM FINANCIAL ARRANGEMENTS

Article 14 provides that the GEF shall be the principal entity entrusted with the operations of the Article 13 financial mechanism

on an interim basis. It or another entity could have this role permanently by a decision of the COP.

ARTICLE 15—REPORTING

Article 15 requires generally that each Party report on measures

it has taken to implement the provisions of this Convention, as

well as their effectiveness. It requires reporting of certain statistical data, or reasonable estimates thereof, on production and

trade.

ARTICLE 16—EFFECTIVENESS EVALUATION

This article provides for a periodic evaluation by the COP of the

Convention’s effectiveness, based on monitoring arrangements to be

initiated at the first COP. The monitoring arrangements are intended to give the COP comparable monitoring data on the presence and transport of the listed POPs, and should use existing

monitoring programs and mechanisms to the extent possible. The

United States is already participating in several global monitoring

and research initiatives that could provide monitoring data to be

used under Article 16.

ARTICLE 17—NON-COMPLIANCE

Article 17 instructs the COP ‘‘as soon as practicable’’ to establish

mechanisms and procedures for determining non-compliance with

the Convention’s obligations and for the treatment of Parties found

to be in non-compliance. Article 17 is typical of non-compliance provisions contained in several multilateral environmental agreements

to which the United States is a Party.

ARTICLE 18—SETTLEMENT OF DISPUTES

This article provides that the Parties shall settle disputes

through negotiation or other peaceful means. Consistent with many

recent environmental agreements, this article also provides for

mandatory recourse, at the request of one party to a dispute, to

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non-binding conciliation. Procedures for this non-binding process

will be elaborated in an annex to be adopted by the COP. In addition, paragraph 2 provides that a Party may declare with respect

to Parties that have made similar declarations that it is prepared

to submit to compulsory dispute settlement by arbitration or before

the International Court of Justice. Consistent with prior practice,

it is recommended that the United States not make such a declaration.

ARTICLE 19—CONFERENCE OF THE PARTIES

Article 19 establishes a COP, consistent with the standard practice in multilateral environmental agreements. Paragraph 4 instructs the COP to adopt rules of procedure and financial rules for

itself and for any subsidiary bodies by consensus. Paragraph 6 instructs the COP to establish a subsidiary body at its first meeting,

the Persistent Organic Pollutants Review Committee, to perform

the specific functions conferred upon the committee under the Convention. It provides that the Committee shall make every effort to

adopt its recommendations by consensus, but at a last resort shall

adopt its recommendations by a two-thirds majority vote.

ARTICLE 20—SECRETARIAT

Article 20 establishes the Secretariat, delineates its functions,

and specifies that the functions of the Secretariat are to be performed by the Executive Director of UNEP unless the COP decides

otherwise.

ARTICLE 21—AMENDMENTS TO THE CONVENTION

Article 21 contains provisions that are common to several international environmental agreements to which the United States is

a party. Paragraph 1 states that any Party may propose amendments to the Convention. Paragraph 2 provides that amendments

shall be adopted at a meeting of the COP provided that they have

been circulated to all parties at least six months in advance of the

meeting.

Paragraph 3 requires that Parties must endeavor to reach agreement on the proposed amendment by consensus. When consensus

cannot be reached, it requires a vote to adopt by a three-fourths

majority of the Parties present and voting. Paragraph 4 requires

amendments to be communicated to the Depositary. Paragraph 5

provides that an amendment shall enter into force for those Parties

that have accepted it, ninety days after it has been accepted by at

least three-fourths of the Parties. Thereafter, it enters into force for

any other Party ninety days after that Party deposits its instrument of ratification, acceptance or approval of the amendment.

ARTICLE 22—ADOPTION AND AMENDMENT OF ANNEXES

Article 22 covers the process for amending the Convention’s annexes and adding new annexes. As noted above, it is an important

element of the process for adding new POPs chemicals to the Convention. Paragraphs 1 and 2 of Article 22 provide that the annexes

form an integral part of the Convention and restrict any additional

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annexes to ‘‘procedural, scientific, technical or administrative matters.’’

Paragraph 3 sets out the procedure for adding additional annexes

to the Convention. It provides that the procedure for proposal and

adoption of such annexes shall be identical to that for adoption of

amendments to the Convention (i.e., all efforts at consensus, or at

a minimum three-fourths majority to adopt an additional annex).

However, new annexes will enter into force through an ‘‘opt-out’’ procedure: once adopted, the annex will bind all Parties one year

after adoption, except for those Parties that have submitted, during

that year, a notification of non-acceptance. As noted below, however, paragraph 6 provides that, if the adoption of a new annex is

linked to an amendment of the Convention, the annex will enter

into force when the related amendment enters into force.

Paragraph 4 sets forth a special procedure for the proposal, adoption and entry into force of amendments to Annexes A, B, or C;

these are the annexes that list the chemicals covered by the convention and set out the related control obligations. (Note: additional requirements for proposing amendments to list a new chemical in these Annexes are found in Article 8.) These amendments

are to be proposed and adopted in the same manner as adding a

new annex (i.e., requiring all efforts to achieve consensus or, at a

minimum, a three-fourths majority to adopt the amendment). Once

they are adopted, amendments to add new chemicals will enter into

force for all Parties one year later, except in two cases:

(1) where, as with new annexes, a Party has notified the depositary within that one-year period that it does not accept the

amendment (i.e., invokes an ‘‘opt-out’’ procedure); or

(2) where a Party has made a declaration, at the time it deposits its instrument of ratification in accordance with Article

25(4), that any amendment to Annexes A, B or C shall enter

into force for it only upon its affirmative acceptance of that

new obligation (i.e., it invokes a Party-specific ‘‘opt-in’’ procedure).

The second alternative above, which was sought by the United

States, creates an optional Party-specific ‘‘opt-in’’ approach for the

addition of new chemicals. In the absence of its express consent, a

Party that has made such a declaration is not bound by any new

listing.

Paragraph 5 sets forth a different procedure for the proposal,

adoption, and entry into force of amendments to Annexes D, E and

F. These are the annexes that set out the criteria and information

requirements governing the process for listing new chemicals.

These criteria must apply equally to all Parties: the Committee

could not properly carry out its responsibilities, thus jeopardizing

the effectiveness of the Convention, if different Parties had agreed

to different listing criteria. Accordingly, more traditional amendment procedures that allow parties to accept or reject particular

amendments would not work in these cases. Therefore, the Convention provides for amendment of these annexes only by consensus.

Once consensus is achieved, however, the amendment enters into

force for all Parties. Importantly, the requirement for consensus

means that a change in the criteria annexes, which contain no direct obligations or Parties but could affect the ultimate scope of the

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Convention, could not be achieved over the objection of the United

States, if it became a Party.

Paragraph 6 provides that, if an additional annex or amendment

to an annex is related to an amendment to the Convention, it only

enters into force when the corresponding amendment to the Convention enters into force. An amendment to an annex that is linked

to an amendment to the Convention would therefore not enter into

force until the procedures under Article 21 had been completed.

ARTICLES 23–30 (FINAL CLAUSES)

Articles 23 through 30 are final clauses that are routinely included in conventions negotiated under the auspices of the United

Nations. Article 23 provides that each party shall have one vote,

permits regional economic integration organizations (‘‘REIOs’’) to

exercise the number of votes equal to the number of their member

states that are Parties to the Convention, and precludes a REIO

from exercising its right to vote if any of its members states exercises their right to vote.

Article 24 provides that the Convention is open for signature by

all States until May 22, 2002. As noted above, Article 25 provides

that any Party may declare when it submits its instrument of ratification, acceptance, approval or accession that any amendments to

Annexes A, B or C shall only enter into force for it upon an affirmative indication of its consent to be bound. Article 25 also provides

that REIOs and their member states are not entitled to exercise

rights under the Convention concurrently, and that in becoming

Party to the Convention, a REIO must declare the extent of its

competence in respect of matters governed by the Convention.

Article 26 provides that the Convention shall enter into force on

the ninetieth day after the deposit of the fiftieth instrument of ratification, acceptance, approval or accession. Instruments deposited

by a REIO are not counted for purposes of bringing the Convention

into force.

Article 27 states that no reservations may be made to the Convention. The United States did not endorse this provision in the negotiations, but was the only delegation to express concerns about

this language.

ANNEX A—ELIMINATION

Part I of Annex A lists the chemicals that Parties are required

to control under Article 3(1). As discussed above under Article 4,

the Annex also sets out certain ‘‘specific exemptions,’’ which detail

the type of production and use that a country may continue if it

has registered for such exemption in accordance with Article 4.

Part I also contains four ‘‘notes,’’ three of which serve, in effect,

as exemptions to certain obligations in the Convention. Note (i)

states that quantities of a chemical occurring as unintentional or

trace contaminants in products and articles are not considered to

be listed in the Annex. This clarification will help ensure that the

convention is reasonably capable of being implemented.

Note (ii) allows continued use, including export and import, of

quantities of POPs chemicals that are constituents of articles manufactured or already in use before the entry into force of the relevant obligation so long as a Party notifies the Secretariat that a

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particular type of article remains in use within that Party. The

note requires the Secretariat to make such notification available to

the public. The United States expects to make use of this exemption with respect to a number of articles, such as treated wood.

Note (iii) allows a Party, upon notification to the Secretariat, to

continue to produce and use specified Annex A or B chemicals (for

example, hexachlorobenzene or ‘‘HCB’’) as closed-system, site-limited intermediates. (Intermediates are chemicals that are used in

the production of other chemicals.) HCB is currently used in the

United States as an intermediate. The United States may, therefore, choose to rely on Note (iii) of Annex A to notify the Secretariat

that it will produce and use HCB as an intermediate in accordance

with the provisions of that Note. Such notification would not be required until the Convention enters into force for the United States.

The exemption is renewable upon notification every 10 years, although the COP may decide not to renew it.

Note (iv) makes it clear that the specific exemptions listed in

Part A may only be exercised by countries that have registered for

such exemptions in accordance with Article 4, with one exception:

the specific exemption for use of polychlorinated biphenyls (PCBs)

in articles in use under Part II (discussed below) may be exercised

by all Parties, without the need for a registration under Article 4.

Part II of Annex A contains obligations related to the use of

PCBs in equipment. Paragraph (a) sets out certain obligations with

respect to the identification, labeling and removal from use equipment containing specified levels of PCBs. It also references a target

date of 2025, subject to review by the COP, for the phase-out of

such equipment that should guide Parties in implementing their

obligations under this provision. The United States has already

taken strict measures to regulate PCBs and can implement this

provision under existing authorities.

The remaining sections of Part II obligate each Party to promote

certain measures designed to reduce the risk from PCBs in equipment; prohibit export of PCBs except for the purpose of environmentally sound waste management; prohibit recovery for purposes

of reuse of certain PCB liquids above 0.005 percent; and ‘‘make determined efforts’’ to ensure that all liquid PCBs and PCB equipment is disposed of in accordance with Article 6 by 2028. Existing

statutory authority allows the United States to implement each of

these obligations, nearly all of which are currently addressed under

existing PCB regulations. Only U.S. regulations that currently

allow the export of PCB equipment will require revision to conform

them to these obligations.

ANNEX B—RESTRICTION

Part I of Annex B will list those chemicals for which production

and use are restricted under Article 3, paragraph 1(b). Currently,

the only chemical on the list is DDT. Annex B restricts DDT production and use to disease vector control, in recognition of its special value in fighting the spread of malaria, which claims over one

million lives worldwide each year. Annex B also allows Parties to

take specific exemptions for DDT production and use as an intermediate in the production of dicofol, a pesticide. DDT is not currently registered for use in the United States for disease vector

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control, nor is it produced in the United States. As noted above,

however, DDT could potentially be legally produced or imported for

use as an industrial chemical under certain circumstances. Legislation will be sought to close this potential gap.

Annex B also contains four ‘‘notes.’’ These are nearly identical to

the notes described under Annex A, with certain conforming

changes. Those changes reflect the fact that Annex B, as a ‘‘restriction annex’’ contains two types of controls: (a) ‘‘acceptable purposes,’’ which list the production and use restrictions that are

available to all Parties; and (b) specific exemptions, which allow additional exemptions for Parties that register for the specified purposes.

Part II of Annex B prescribes the restricted terms under which

a Party may produce and use DDT for disease vector control. It creates a separate register for Parties that produce and use DDT,

specifies certain reporting obligations for such Parties, and includes

provisions aimed at the development and use of alternatives to

DDT.

ANNEX C—UNINTENTIONAL PRODUCTION

Annex C lists the POPs chemicals that occur as unintentionally

produced byproducts, which are subject to the control measures set

out in Article 5. The listed byproduct POPs are: dioxins, furans,

hexachlorobenzene, and PCB. Annex C also sets out the two types

of source categories referred to in Article 5: source categories that

have a potential for comparatively high formation and release of

these chemicals, and other source categories from which they may

be unintentionally released. Annex C also provides general guidance to Parties on best available techniques and best environmental practices for preventing or reducing releases of the listed

POPs byproducts. As provided in Article 5, this general guidance

will be elaborated in the future in guidelines to be adopted by the

COP.

ANNEXES D–F (INFORMATION REQUIREMENTS RELATING TO THE

ADDITION OF NEW CHEMICALS)

Annex D sets out information requirements and screening criteria that each proposal for listing a new POPs chemical must satisfy. The proposing Party must submit information to identify the

chemical, information relevant to the screening criteria set out in

subparagraphs (b) through (e), a statement of the reasons for concern and, to the extent possible, information relating to risk management of the chemical. Subparagraph (b) requires evidence of

persistence. Subparagraph (c) requires evidence of bioaccumulation.

Subparagraphs (d) and (e) require evidence of the chemical’s potential for long-range transport and toxicity, respectively. The numerical criteria for persistence and bioaccumulation in the Convention

are consistent with the criteria applied under existing law and policy in the United States.

Annexes E and F provide the information requirements that the

Persistent Organic Pollutant Review Committee considers in conducting the risk profile and risk management evaluation, respectively.

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Annexes D, E and F are consistent with the approach taken in

existing U.S. pesticide and chemical regulations. Considerations for

taking action under FIFRA and TSCA include risk, costs, benefits,

and other societal factors. As a practical matter, therefore it is likely that any chemical that would be approved for listing under this

international procedures would also be the subject of significant

regulatory action within the United States.

Domestic implementation of the POPs Convention

As noted above, the United States could implement nearly all

Convention obligations under existing authorities. There are exceptions, however, where limited additional legislative authority,

through changes to FIFRA and TSCA, will be sought to ensure the

United States’ ability to implement provisions of the Convention.

These changes primarily concern the obligations in Article 3, which

concerns measures to eliminate production and use of listed chemicals, as well as to control their import and export. In addition, statutory authority to prohibit any recycling of POPs substances will

also be sought, in order to ensure effective U.S. compliance with

paragraph 1(d)(iii) of Article 6. 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.

Conclusion

To date, ninety-one states have signed the Convention; one state

(Canada) has already ratified the Convention. Several states, including many members of the Organization for Economic Cooperation and Development, are expected to deposit instruments of ratification, acceptance or approval over the next year. Early U.S. ratification would provide valuable momentum to bring the Convention

into force and would demonstrate the continued commitment of the

United States to cooperation with the international community on

chemicals management issues, including at the World Summit on

Sustainable Development in Johannesburg in September 2002. It

would also demonstrate continued U.S. leadership on safe management of hazardous chemicals, pesticides, and their wastes. Finally,

it would ensure that the United States is a Party when the Convention enters into force, when many of the critical decisions relating to its implementation will be made. For example, only Parties

will be able to designate experts to sit on the Persistent Organic

Pollutant Review Committee, which will play a key role in considering the addition of new substances to the Convention annexes.

I recommend that the Stockholm Convention on Persistent Organic Pollutants, with Annexes, be transmitted to the Senate for its

advice and consent as soon as possible, subject to the understandings previously described.

Respectfully submitted,

COLIN L. POWELL.

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