[Federal Register Volume 62, Number 83 (Wednesday, April 30, 1997)]
[Rules and Regulations]
[Pages 23538-23549]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-11075]
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Part III
Environmental Protection Agency
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40 CFR Part 8
Environmental Impact Assessment of Nongovernmental Activities in
Antarctica; Final Rule
Federal Register / Vol. 62, No. 83 / Wednesday, April 30, 1997 /
Rules and Regulations
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 8
[FRL-5818-8]
Environmental Impact Assessment of Nongovernmental Activities in
Antarctica
AGENCY: Environmental Protection Agency (EPA).
ACTION: Interim final rule.
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SUMMARY: Public Law 104-227, the Antarctic Science, Tourism, and
Conservation Act of 1996 (the Act), amends the Antarctic Conservation
Act of 1978, 16 U.S.C. 2401 et seq., to implement the Protocol on
Environmental Protection (the Protocol) to the Antarctic Treaty of 1959
(the Treaty). The Act directs the Environmental Protection Agency (EPA)
to promulgate regulations that provide for assessment of the
environmental impacts of nongovernmental activities in Antarctica and
for coordination of the review of information regarding environmental
impact assessments received from other Parties under the Protocol. This
interim final rule establishes requirements for assessments and
coordination. This interim final rule applies only to nongovernmental
activities that may occur through the 1998-99 austral summer, and will
be replaced by a final rule.
DATES: Effective date: April 30, 1997.
FOR FURTHER INFORMATION CONTACT: Mr. Joseph Montgomery or Ms. Katherine
Biggs, Office of Federal Activities (2252A), U.S. Environmental
Protection Agency, 401 M Street, S.W., Washington, D.C. 20460;
telephone: (202) 564-7157 or (202) 564-7144, respectively.
SUPPLEMENTARY INFORMATION: This preamble is organized according to the
following outline:
I. Introduction
A. Statutory Background
B. Background of the Rulemaking
II. Description of Program and Interim Final Regulations
A. The Antarctic Treaty and Protocol
B. The Purpose of These Interim Final Regulations
C. Summary of the Protocol
D. Activities Covered by These Interim Final Regulations
1. Persons Required to Carry Out an EIA
2. Differences Between Governmental and Nongovernmental
Activities
3. Appropriate Level of Environmental Documentation
4. Criteria for a CEE While this Interim Final Rule is in Effect
5. Measures to Assess and Verify Environmental Impacts
E. Incorporation of Information, Consolidation of Environmental
Documentation, and Waiver or Modification of Deadlines
F. Submission of Environmental Documents
G. Prohibited Acts, Enforcement and Penalties
III. Coordination of Review of Information Received from Other
Parties to the Treaty
IV. Executive Order Clearance
V. Regulatory Flexibility Act
VI. Unfunded Mandates Reform Act
VII. Paperwork Reduction Act
VIII. Executive Order 12898, Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations
IX. Submission to Congress and the General Accounting Office
I. Introduction
A. Statutory Background
On October 2, 1996, the President signed into law the Antarctic
Science, Tourism, and Conservation Act of 1996 (the Act). The purpose
of the Act is to implement the provisions of the Protocol on
Environmental Protection (the Protocol) to the Antarctic Treaty of 1959
(the Treaty). The Act provides that: ``The [Environmental Protection
Agency] shall, within 2 years after the date of * * * enactment * * *
promulgate regulations to provide for * * * the environmental impact
assessment of nongovernmental activities, including tourism, for which
the United States is required to give advance notice under Paragraph 5
of Article VII of the Treaty * * * and * * * coordination of the review
of information regarding environmental impact assessment received from
other Parties under the Protocol.'' Regulations must be ``consistent
with Annex I to the Protocol.''
B. Background of the Rulemaking
These interim final regulations are necessary so that the United
States (the U.S.) will have the ability to implement its obligations
under the Protocol, as soon as the Protocol enters into force. The
Protocol enters into force on the thirtieth day following the date of
deposit of instruments of ratification, acceptance, approval or
accession by all States which were Antarctic Treaty Consultative
Parties at the date on which the Protocol was adopted. Only two such
States (the Russian Federation and Japan) have yet to deposit their
instruments of ratification. The United States deposited its instrument
on April 17, 1997, with the knowledge that these interim final
regulations would be issued contemporaneously.
It is important for the Protocol to enter into force as soon as
possible, because it provides important environmental protections for
Antarctica. The next meeting of the Antarctic Treaty Consultative
Parties will occur in Christchurch, New Zealand, in May of 1997. A
major international effort is underway to promote entry into force of
this important instrument on or close to the date of this meeting. In
order to promote that objective, and to prompt the remaining other
States to take the necessary steps, the United States views depositing
its instrument of ratification thirty days before the May meeting as a
foreign policy priority. Since these interim final regulations are
necessary to ensure that the United States is able to comply with its
obligations under the Protocol, the implementing regulations must be in
place contemporaneous with the U.S. deposit of its instrument of
ratification.
Although the Act gives the Environmental Protection Agency (EPA)
two years to promulgate regulations, the United States sought immediate
ratification of the Protocol which, in turn, required EPA to have
regulations in effect contemporaneous with ratification since the
regulations provide nongovernmental operators with the specific
requirements they must meet in order to comply with the Protocol.
Accordingly, immediate promulgation of this interim final rule is
necessary so that the United States could ratify the Protocol and
implement its obligations under the Protocol as soon as the Protocol
enters into force.
Because of the importance of facilitating the Protocol's prompt
entry into force, EPA believes it has good cause under 5 U.S.C.
553(b)(B) to find that implementation of notice and comment procedures
for the interim final rule would be contrary to the public interest and
unnecessary. For these reasons, these interim final regulations are
being issued without notice and an opportunity to comment. In addition,
for the same reasons, under 5 U.S.C. 553(d)(3), these interim final
regulations take effect on April 30, 1997.
A comment period would be contrary to the public interest because,
as stated above, the resulting delay would have prevented U.S.
ratification of the Protocol and thus could have delayed its entry into
force. Implementing interim final regulations is the most significant
step the United States can take to facilitate the ratification of the
Protocol. It is important that the Protocol enter into force as soon as
possible to meet the important foreign policy objectives described
above. The
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prompt entry of the Protocol into force will also secure as quickly as
possible the significant environmental protections afforded by its
provisions and annexes. Without the Protocol, there are no obligations
for any countries, or their nationals, to undertake environmental
impact assessments of proposed activities in Antarctica. Thus, it is in
the U.S. and global public interest for EPA to issue interim final
regulations thereby securing immediate U.S. ratification and promoting
rapid entry into force of the Protocol.
Further, public comment on the requirements for environmental
documentation, including procedures and content, in these interim final
regulations would also be unnecessary because these interim final
regulations incorporate the environmental documentation requirements of
the Protocol, which was signed by the U.S. in 1991 and received the
advice and consent of the Senate in 1996. Specifically, language from
the Protocol has been incorporated into these interim final regulations
regarding the content of initial environmental evaluation (IEE) and
comprehensive environmental evaluation (CEE) documentation as required
by the Protocol, and the timing requirements of these interim final
regulations have been set out to meet those established by Annex I to
the Protocol.
Finally, these interim final regulations are limited in time and
effect. They apply only to nongovernmental activities to be conducted
in Antarctica through the 1998-99 austral summer, the next two
Antarctic seasons, and are intended to provide for a transition period
over those two seasons. They are not intended to set a precedent for
final regulations which the EPA will develop prior to the statutory
deadline of October 2, 1998.
EPA plans extensive opportunities for public comment in the
development of the final regulations mentioned above. The regulations
will be proposed and promulgated in accordance with the provisions of
the Administrative Procedure Act (5 U.S.C. 553) which requires notice
to the public, description of the substance of the proposed rule and an
opportunity for public comment. Further, EPA will prepare an
Environmental Impact Statement (EIS) which will consider the
environmental impacts of the proposed rule and alternatives, and which
will address the environmental and regulatory issues raised by
interested agencies, organizations, groups and individuals. The public
may participate in the initial scoping process for the EIS, which will
include a scoping meeting to be scheduled in June 1997. Thus the public
will have an opportunity to comment on the proposed regulation as well
as the draft EIS (DEIS), including participation in a public meeting on
both the DEIS and the proposed regulation to be scheduled in early
1998.
II. Description of Program and Interim Final Regulations
A. The Antarctic Treaty and Protocol
The Antarctic Treaty of 1959 entered into force in 1961 and
guarantees freedom of scientific research in Antarctica, reserves
Antarctica exclusively for peaceful purposes, establishes regular
meetings of the Parties to the Treaty (Parties) to develop measures to
implement the Treaty and to deal with issues which may arise, and
freezes territorial claims. Currently 26 countries participate in
decision-making under the Treaty as Consultative Parties. Seventeen
other countries are Parties, but may not block decisions taken by
consensus of the Consultative Parties.
As human activities in Antarctica intensified, concern grew
regarding the effects of such activities on the Antarctic environment
and the potential consequences of the development of mineral resources.
In 1990, the U.S. Congress responded by passing the Antarctic
Protection Act, which prohibited persons subject to U.S. jurisdiction
from engaging in Antarctic mineral resource activities and called for
the negotiation of an environmental protection agreement.
Over the years, the Antarctic Treaty Parties have adopted a variety
of measures to protect the Antarctic environment. In 1991, the Parties
adopted the Protocol on Environmental Protection which builds upon the
Treaty by extending and strengthening Antarctic environmental
protection. The Protocol designates Antarctica as a natural reserve
dedicated to peace and science, and bans non-scientific mineral
activities. The Protocol requires prior assessment of the possible
environmental impacts of all activities to be carried out in
Antarctica. It establishes the Committee for Environmental Protection
(the Committee) to provide expert scientific and technical advice to
the Parties on measures necessary to effectively implement the
Protocol. The Protocol requires that draft CEEs for activities likely
to have more than a minor or transitory impact on Antarctica and its
dependent and associated ecosystems be provided to the Parties and to
the Committee. Because legislation was needed in order for the United
States to be able to implement its obligations under the Protocol, the
Antarctic Science, Tourism, and Conservation Act of 1996 was enacted by
Congress. The Act directs EPA to issue regulations implementing the
requirements for environmental impact assessments of nongovernmental
activities, including tourism, for which the U.S. is required to give
advance notice under the Treaty.
B. The Purpose of These Interim Final Regulations
The purpose of these interim final regulations is to provide for
the evaluation of the potential environmental impact for the 1997-98
and 1998-99 Antarctic seasons of those nongovernmental activities in
Antarctica, including tourism, for which the United States is required
to give advance notice under paragraph 5 of Article VII of the Treaty
and which are proposed to take place at any time through the 1998-99
austral summer. The Treaty requires notice of, inter alia, ``all
expeditions to Antarctica organized in or proceeding from'' the United
States. In addition, these interim final regulations provide for
coordination of reviews of draft CEEs received from other Parties, in
accordance with the Protocol, for activities to be carried out in
Antarctica during these two seasons. The Act states that these
regulations are to be consistent with Annex I to the Protocol.
Among other things, these interim final regulations specify the
procedures that must be followed by any person or persons organizing a
nongovernmental expedition to or within Antarctica ('operator' or
'operators') in evaluating the potential environmental impacts of their
activities. These interim final regulations include the required
considerations and elements relevant to environmental documentation of
the evaluation, as well as procedures for submission of environmental
documentation to allow the EPA to review whether the evaluation meets
the obligations set forth herein and the requirements of Annex I of the
Protocol.
Operators currently provide information to the National Science
Foundation prior to each Antarctic season and this information is
transmitted to the Department of State to meet U.S. obligations for
notification pursuant to Article VII of the Treaty which requires
advance notice of expeditions to and within Antarctica. This
information is also part of the basic information requirements for
preparation of environmental documentation, as addressed in Sec. 8.4(a)
of these interim final regulations. While
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operators are required to include this information in environmental
documentation, they may also continue to provide this information
directly to the National Science Foundation.
C. Summary of the Protocol
This interim final rule implements Annex I to the Protocol, which
describes procedures to be used in conducting environmental impact
assessments of effects of activities in Antarctica. Article 8 of the
Protocol provides that Parties to the Protocol ensure that the
assessment procedures of Annex I are applied in planning processes
leading to decisions about any activities, including nongovernmental
activities, including tourism, to be undertaken in the Antarctic Treaty
area for which advance notice is required under paragraph 5 of Article
VII of the Treaty.
The procedures set forth in Annex I require that all proposed
activities by operators be assessed, through one or more stages of
assessment. If an activity will have an impact that is less than minor
or transitory, only a preliminary environmental assessment must be
submitted in accordance with these interim final regulations before the
activity proceeds. For an activity that will have no more than a minor
or transitory impact, an initial environmental evaluation (IEE) must be
submitted in accordance with these interim final regulations before the
activity proceeds. Finally, if it is determined (through an IEE or
otherwise) that an activity is likely to have more than a minor or
transitory impact, a comprehensive environmental evaluation (CEE) must
be submitted in accordance with these interim final regulations before
the activity proceeds.
An IEE describes an activity's purpose, location, duration and
intensity, and considers alternatives and assesses impacts, including
cumulative impacts, in light of existing and known proposed activities.
A CEE is a detailed analysis that comprehensively evaluates the
activity, its impacts, alternatives, mitigation and the like. A draft
CEE must be provided to the Parties and the Committee at least 120 days
before the next consultative meeting where the draft CEE may be
addressed. No final decision shall be taken to proceed with any
activity for which a CEE is prepared unless there has been an
opportunity for consideration of the draft CEE at an Antarctic Treaty
Consultative Meeting (ATCM) on the advice of the Committee (unless the
decision to proceed with the activity has already been delayed more
than 15 months since the date of circulation of the draft CEE). A final
CEE must be circulated at least 60 days before commencement of the
proposed activity. Any decision by the operator on whether a proposed
activity should proceed in either its original or modified form must be
based upon the final CEE as well as other relevant considerations, and
procedures must be put in place for monitoring the impact of any
activity that proceeds following completion of a CEE.
Evaluations need to address Annex I to the Protocol. The
information contained in an evaluation should allow the operator to
make decisions based on a sound understanding of factors relevant to
the likely impact of the proposed activity. An evaluation should, as
appropriate, contain sufficient information to allow assessments of,
and informed judgements about, the likely impacts of proposed
activities on the Antarctic environment and on the value of the
Antarctic environment for the conduct of scientific research. Depending
on the specific circumstances surrounding the proposed activities,
various factors may be relevant for consideration in the environmental
impact assessment process such as the scope, duration and intensity of
the activity proposed in Antarctica, cumulative impacts, impacts on
other activities in the Antarctic Treaty area, and capacity to assess
and verify adverse environmental impacts. Operators may also find it
appropriate to consider the availability of technology and procedures
for environmentally safe operations and whether there exists the
capacity to respond promptly and effectively to accidents with
environmental effects.
D. Activities Covered by These Interim Final Regulations
1. Persons Required to Carry Out an EIA
The requirements of these interim final regulations apply to
operators of nongovernmental expeditions organized in or proceeding
from the territory of the United States to Antarctica. The term
``expedition'' is taken from paragraph 5 of Article VII of the Treaty
and encompasses all actions or activities undertaken by a
nongovernmental expedition while it is in Antarctica. These interim
final regulations do not apply to individual U.S. citizens or groups of
citizens planning to travel to Antarctica on an expedition for which
they are not acting as an operator.
For a commercial tour, typical functions of an operator would
include, for example, acting as the primary person or group of persons
responsible for acquiring use of vessels or aircraft, hiring expedition
staff, planning itineraries, and other organizational responsibilities.
Non-commercial expeditions covered by these interim final regulations
include trips by yachts, skiing or mountaineering expeditions,
privately funded research expeditions, and other nongovernmental or
nongovernment-sponsored activities.
These interim final regulations do not apply to U.S. citizens who
participate in tours organized in and proceeding from countries other
than the United States. As provided in the Protocol, the requirements
do not apply to activities undertaken in the Antarctic Treaty area that
are governed by the Convention on the Conservation of Antarctic Marine
Living Resources or the Convention for the Conservation of Antarctic
Seals. Persons traveling to Antarctica are subject to the requirements
of the Marine Mammal Protection Act, 16 U.S.C. 1371 et seq.
2. Differences Between Governmental and Nongovernmental Activities
These interim final regulations do not apply to governmental
activities. c.f. 45 CFR 641.10 through 641.22 (National Science
Foundation regulations for assessing impacts of governmental activities
in Antarctica). However, EPA believes that, to the extent practicable,
similar procedures should generally be used for assessing both
governmental and nongovernmental activities. Consistent with this,
these interim final regulations generally establish procedures for
assessing the impacts of nongovernmental activities in Antarctica
similar to those used for governmental activities under the National
Science Foundation regulations.
However, EPA also recognizes that it will not always be appropriate
to apply identical standards and procedures for governmental and
nongovernmental activities. Specifically, numerous mechanisms and
processes exist to ensure public scrutiny and accountability of
governmental activities. In some instances, no comparable mechanisms or
processes exist for nongovernmental activities. Thus, these interim
final regulations provide for direct federal review of each
nongovernmental environmental impact assessment by giving EPA authority
to review, in consultation with other interested federal agencies,
nongovernmental environmental impact assessments for compliance with
the requirements of Annex I to the Protocol and these interim final
regulations.
To promote consistency regarding environmental documentation, EPA
intends to consult with the National Science Foundation and other U.S.
government agencies with appropriate
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expertise in the course of reviewing the assessments of proposed
nongovernmental activities in the Antarctic. Further, following the
final response from the operator to EPA's initial comments, EPA will
obtain the concurrence of the National Science Foundation in making any
determination that the environmental documentation submitted by an
operator fails to meet the requirements under Article 8 and Annex I to
the Protocol and the provisions of these interim final regulations.
3. Appropriate Level of Environmental Documentation
(a) Preliminary Environmental Review Memorandum (PERM). These
interim final regulations provide that an operator who asserts that an
expedition will have less than a minor or transitory impact must
provide a Preliminary Environmental Review Memorandum (PERM) to the EPA
no later than 180 days before the proposed departure of the expedition
to Antarctica. The timing requirement has been established to provide
sufficient time for the operator to prepare an IEE if one is needed.
The EPA, in consultation with other interested federal agencies, will
review the PERM to determine if it is sufficient to demonstrate that
the activity will have less than a minor or transitory impact or
whether additional environmental documentation, i.e., an IEE or CEE, is
required to meet the obligations of Annex I. The EPA will provide its
comments to the operator within fifteen (15) days of receipt of the
PERM, and the operator will have seventy-five (75) days to prepare a
revised PERM or an IEE, if necessary. Following the final response from
the operator, EPA may make a finding that the environmental
documentation submitted does not meet the requirements of Article 8 and
Annex I of the Protocol and the provisions of these interim final
regulations. This finding will be made with the concurrence of the
National Science Foundation. If EPA does not provide such notice within
thirty (30) days, the operator will be deemed to have met the
requirements of these interim final regulations.
If EPA recommends an IEE and one is prepared and submitted within
the seventy-five (75) day response period, the schedule for review will
follow the time frames set out for an IEE in these interim final
regulations. (See: Section II.D.3(b), below.) Should EPA recommend a
CEE, timing requirements applicable to CEEs may necessitate a delay in
plans to initiate a proposed activity. Operators are encouraged to
consult with EPA on options in this regard.
(b) Initial Environmental Evaluation (IEE). Article 2 of Annex I to
the Protocol requires that unless it has been determined that an
activity will have less than a minor or transitory impact, or unless a
CEE is being prepared in accordance with Article 3 of Annex I, an IEE
must be prepared. Among the items to be included in an IEE to document
that an activity will have no more than a minor or transitory impact
are the cumulative impacts of the proposed activity in light of
existing and known proposed activities. Expeditions, by their nature,
involve the transport of persons to Antarctica which will result in
physical impacts, which may include, but not be limited to: air
emissions, discharges to the ocean, noise from engines, landings for
sight-seeing, and activities by visitors near wildlife. Accordingly, it
is EPA's view that, at minimum, an IEE is the appropriate level of
environmental documentation for proposed activities where multiples of
the activity over time are likely and may create a cumulative impact,
unless an existing IEE or CEE supports a finding that the type of
activity proposed results in a less than minor or transitory cumulative
impact. However, as noted below, it is also EPA's view that the types
of nongovernmental activities that are currently being carried out will
typically be unlikely to have impacts that are more than minor or
transitory assuming that activities will be carried out in accordance
with the guidelines set forth in the ATCM Recommendation XVIII-1,
Tourism and non-Governmental Activities, the relevant provisions of
other U.S. statutes, and Annexes II-V to the Protocol. In the event
that a determination is made that a CEE is needed to meet the
requirements of Annex I to the Protocol and the provisions of these
interim final regulations, timing requirements applicable to CEEs may
necessitate a delay in plans to initiate a proposed activity, and
operators are encouraged to consult with EPA on options. The EPA will
consider the question of the appropriate level of review in more detail
in developing the final rule, utilizing the experience gained during
the implementation of this interim final rule and public comments
provided in the final rule-making process.
Any operator who wishes to make an expedition to Antarctica during
the time period covered by these interim final regulations is required
to provide an IEE to EPA no less than ninety (90) days prior to the
proposed departure of the expedition to Antarctica unless: (1) A
decision has been made to prepare a CEE, or (2) the operator has
submitted a PERM and there has not been a finding within the time
limits of these interim final regulations that the PERM fails to meet
the requirements under Annex I to the Protocol and the provisions of
these interim final regulations.
The EPA will provide its comments to the operator within thirty
(30) days of receipt of the IEE, and the operator will have forty-five
(45) days to prepare a revised IEE, if necessary. Following the final
response from the operator, EPA may make a finding that the
documentation submitted does not meet the requirements of Article 8 and
Annex I of the Protocol and the provisions of these interim final
regulations. This finding will be made with the concurrence of the
National Science Foundation. If such a notice is required, EPA will
provide it within fifteen (15) days of receiving the final IEE from the
operator or, if the operator does not provide a final IEE, within sixty
(60) days following EPA's comments on the original IEE. If EPA does not
provide notice within these time limits, the operator will be deemed to
have met the requirements of these interim final regulations, provided
that procedures, which may include appropriate monitoring, are carried
out to assess and verify the impact of the activity.
If a CEE is required, the operator must adhere to the time limits
applicable to such documentation. (See: Section II.D.3.(c), below.) In
the event that a determination is made that a CEE is required, EPA, at
the operator's request, will consult with the operator regarding
possible changes in the proposed activity which would allow preparation
of an IEE.
The EPA, upon receipt of an IEE, will electronically publish notice
of its receipt on the Office of Federal Activities' World Wide Web
Site: http://es.inel.gov/oeca/ofa/. The Department of State will
circulate to the Parties and make publicly available a copy of an
annual list of IEEs prepared by U.S. operators in accordance with
Article 2 and any decisions taken in consequence thereof. Any IEE
prepared in accordance with these interim final regulations shall be
made available by the EPA on request.
(c) Comprehensive Environmental Evaluation (CEE). Article 3(4), of
Annex I of the Protocol requires that draft CEEs be distributed to all
Parties and the Committee 120 days in advance of the next Antarctic
Treaty Consultative Meeting at which the CEE may be addressed. Since
the next ATCM is now scheduled for May 19-30, 1997, CEEs prepared for
nongovernmental activities
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in the 1997-1998 season would have to have been distributed by January
1997, should the Protocol enter into force before or during the 1997-
1998 season. Because it is now impossible for a CEE to be submitted for
the 1997-1998 season as required by the Protocol, modifications to the
proposed expedition which would eliminate any impacts that might
require a CEE, and thereby allow for an IEE, would be necessary in
order to comply with these interim final regulations and the Protocol.
Operators who are anticipating activities for the 1997-1998 season
which would require a CEE are encouraged to consult with the EPA as
soon as possible.
For the 1998-1999 season, any operator who plans an activity which
would require a CEE must submit a draft of the CEE to EPA by December
1, 1997. Within fifteen (15) days of receipt of the draft CEE, EPA will
send it to the Department of State for transmittal as a draft CEE to
other Parties in January 1998 and EPA will publish notice of receipt of
the CEE in the Federal Register and will provide copies to any person
upon request. The EPA will accept public comments on the CEE for a
period of ninety (90) days following notice in the Federal Register.
The EPA will make these public comments available to the operator.
The EPA, in consultation with other interested federal agencies,
will review the CEE to determine if it meets the requirements under
Annex I to the Protocol and the provisions of these interim final
regulations and transmit its comments to the operator within 120 days
following publication of notice of availability in the Federal Register
to allow for the inclusion of any additional information in the CEE.
The operator shall prepare a final CEE that addresses and includes or
summarizes any comments on the draft CEE received from EPA, the public
and the Parties, including comments offered at the XXII Antarctic
Treaty Consultative Meeting in 1998. The final CEE shall be sent to EPA
at least seventy-five (75) days before proposed departure. Following
the final response from the operator, the EPA will inform the operator
if EPA, with the concurrence of the National Science Foundation, makes
the finding that the environmental documentation submitted does not
meet the requirements of Article 8 and Annex I of the Protocol and the
provisions of these interim final regulations. This notification will
occur within fifteen (15) days of submittal of the final CEE if the CEE
is submitted by the operator within the time limits set out in these
interim final regulations. If no final CEE is submitted by the
operator, or if the operator fails to meet these time limits, EPA will
provide such notification sixty (60) days prior to departure of the
expedition. If, after receipt of such notification, the operator
proceeds with the expedition without fulfilling the requirements of
these interim final regulations, the operator is subject to enforcement
proceedings pursuant to Sections 7, 8, and 9 of the Antarctic
Conservation Act, as amended by the Act; 16 U.S.C. 2407, 2408, 2409,
and 45 CFR part 672. If EPA does not provide notice, the operator will
be deemed to have met the requirements of these interim final
regulations provided that procedures, which include appropriate
monitoring, are carried out to assess and verify the impact of the
activity. The EPA will transmit the final CEE to the Department of
State which shall circulate it to all Parties no later than sixty (60)
days before proposed departure of the expedition, along with a notice
of any decisions by the operator relating thereto. The EPA will publish
a notice of availability of the final CEE in the Federal Register.
Operators are encouraged to consult with the EPA as early as
possible if there are questions as to whether a CEE will be required
for a proposed expedition.
4. Criteria for a CEE While this Interim Final Rule is in Effect
Article 3 of Annex I to the Protocol requires a CEE when it is
determined that an activity is likely to have more than a minor or
transitory impact. While the need for a CEE will be evaluated for each
activity on a case-by-case basis, it is EPA's view that the type of
nongovernmental activities that are currently being carried out will
typically be unlikely to have impacts that are more than minor or
transitory.
However, the need for a CEE could be triggered by a proposed
activity which represents a major departure from current
nongovernmental activities, resulting in a large increase in adverse
environmental impact at a site. Similarly, a CEE may be required if an
activity is likely to give rise to particularly complex, cumulative,
large-scale or irreversible effects, such as perturbations in unique
and very sensitive biological systems. An example of an activity which
might require a CEE would be the construction and operation of a new
crushed rock airstrip or runway.
In evaluating whether a CEE is the appropriate level of
environmental documentation, the EPA will consider the impact in terms
of the context of the Antarctic environment and the intensity of the
activity. The Antarctic environment is for the most part unspoiled, has
intrinsic value, and is of great value to science and to humankind's
overall understanding of the global environment. In addition, because
of the location and uniqueness of the ecosystem, there would likely be
great difficulty responding to environmental threats and mitigating
damage to the Antarctic ecosystem. The EPA believes a comparable
threshold should be applied in determining whether an activity may have
an impact that is more than minor or transitory under these interim
final regulations as is used in determining if the activity will have a
`significant' effect for purposes of the National Environmental Policy
Act. C.f. 40 CFR 1508.27
5. Measures to Assess and Verify Environmental Impacts
The Protocol and these interim final regulations require an
operator to employ procedures to assess and provide a regular and
verifiable record of the actual impacts of any activity which proceeds
on the basis of an IEE or CEE. The record developed through these
measures shall be designed to: (a) Enable assessments to be made of the
extent to which such impacts are consistent with the Protocol; and (b)
provide information useful for minimizing and mitigating those impacts,
and, where appropriate, on the need for suspension, cancellation, or
modification of the activity. Moreover, an operator must monitor key
environmental indicators for an activity proceeding on the basis of a
CEE. An operator may also need to carry out monitoring in order to
assess and verify the impact of an activity for which an IEE has been
prepared.
For activities requiring an IEE, an operator should be able to use
procedures currently being voluntarily utilized by operators to provide
the required information. For example, such information could include,
as appropriate and to the best of the operator's knowledge:
identification of the number of tourists put ashore at each site, the
number and location of each landing site, the total number of tourists
at each site per ship and for the season; number of times the site has
been visited in the past; the number of times the site is expected to
be visited in the forthcoming season; the times of the year that visits
are expected to occur (e.g., before, during, or after the penguin
breeding season); the number of visitors expected to be put ashore at
the site at any one time and over the course of a particular visit;
what visitors are expected to do while at the site;
[[Page 23543]]
verification that guidelines for tourists are followed; description of
any tourist exceptions to the landing guidelines; and description of
any activity requiring mitigation, the mitigative actions undertaken,
and the actual or projected outcome of the mitigation.
These interim final regulations do not set out detailed monitoring
procedures for activities requiring a CEE because the Parties are still
working to identify monitoring approaches which can best support the
Protocol's implementation. Thus, should an activity require a CEE, the
operator should consult with EPA to: (a) Identify the monitoring regime
appropriate to that activity, and (b) determine whether and how the
operator might utilize relevant monitoring data collected by the U.S.
Antarctic Program. The EPA will consult with the National Science
Foundation and other interested federal agencies regarding this
monitoring regime.
The EPA, in consultation with the National Science Foundation and
other interested federal agencies, will review the results of the
measures employed pursuant to these interim final regulations and may
provide additional guidance in the final rule.
E. Incorporation of Information, Consolidation of Environmental
Documentation, and Waiver or Modification of Deadlines
The EPA is strongly committed to minimizing unnecessary paperwork
and to implementation of these interim final regulations such that
undue burden is not placed on operators, particularly in view of the
time requirements associated with environmental documentation
requirements. Therefore, provided that documentation complies with all
applicable provisions of Annex I to the Protocol and these interim
final regulations, and, provided that the environmental documentation
is appropriate in light of the specific circumstances of each
operator's expedition or expeditions, the EPA will allow the following
approaches to documentation: (1) Material may be incorporated by
referring to it in the environmental document with its content briefly
described when the cited material is reasonably available to the EPA;
(2) more than one proposed expedition by an operator may be included
within one environmental document and may, if appropriate, include a
single discussion of components of the environmental analysis which are
applicable to some or all of the proposed expeditions; and (3) one
environmental document may also be used to address expeditions being
carried out by more than one operator, provided that the environmental
documentation includes the names of each operator for which the
environmental documentation is being submitted pursuant to obligations
under these interim final regulations. Further, the EPA may waive or
modify the deadlines of these interim final regulations if the Protocol
has not yet entered into force or where EPA determines an operator is
acting in good faith and that circumstances outside the control of the
operator created delays, provided that environmental documentation
fully meets deadlines under the Protocol.
F. Submission of Environmental Documents
The operator shall submit five copies of its environmental
documentation, along with an electronic copy in HTML format, if
available, to the EPA by mail to: U.S. Environmental Protection Agency,
Office of Federal Activities, EIS Filing--Mail Code 2252-A, 401 M
Street SW, Washington, DC 20460.
Environmental documents may also be sent by special delivery
(Federal Express, United Parcel Service, etc.) or hand-carried to: U.S.
Environmental Protection Agency, Office of Federal Activities, EIS
Filing--Mail Code 2252-A, Room 7241, Ariel Rios Building (South Oval
Lobby), 1200 Pennsylvania Avenue, NW, Washington, DC 20044.
An operator who wishes to may notify and submit environmental
documentation at an earlier date than required for this interim final
rule. The EPA review process, including notification for public review
and comment, will commence with the submittal of environmental
documentation and will follow deadlines for response indicated in the
appropriate sections of this interim final rule.
G. Prohibited Acts, Enforcement and Penalties
It shall be unlawful for any operator to violate these interim
final regulations. An operator who violates any of these interim final
regulations is subject to enforcement, which may include civil and
criminal enforcement proceedings, and penalties, pursuant to Sections
7, 8, and 9 of the Antarctic Conservation Act, as amended by the Act;
16 U.S.C. 2407, 2408, 2409, and 45 CFR part 672.
III. Coordination of Review of Information Received from Other
Parties to the Treaty
Article 6 of Annex I to the Protocol provides that the following
information shall be circulated to the Parties, forwarded to the
Committee for Environmental Protection, and made publicly available:
(1) A description of national procedures for considering the
environmental impacts of proposed activities; (2) an annual list of any
IEEs and any decisions taken in consequence thereof; (3) significant
information obtained and any action taken in consequence thereof with
regard to monitoring from IEEs and CEEs; and (4) information in a final
CEE. In addition, Article 6 requires that any IEE be made available on
request, and Article 3 requires that draft CEEs be circulated to all
Parties, who shall make them publicly available. A period of ninety
(90) days is allowed for the receipt of comments. To implement these
requirements of the Protocol, this interim final rule sets out the
process for circulation of this information within the United States.
Upon receipt of a CEE from another Party, the Department of State
shall publish notice of receipt in the Federal Register and shall
circulate a copy of the CEE to all interested federal agencies. The
Department of State shall coordinate responses from federal agencies to
the CEE and shall transmit the coordinated response, if any, to the
Party which has circulated the CEE. The Department of State shall make
a copy of the CEE available upon request to the public. Members of the
U.S. public should comment directly to the operator who has drafted the
CEE and provide a copy to the EPA for its consideration.
Upon receipt of the annual list from another Party of IEEs prepared
in accordance with Article 2 of Annex I and any decisions taken in
consequence thereof, the Department of State shall circulate a copy to
all interested federal agencies. The Department of State shall make a
copy of any list of IEEs from other Parties prepared in accordance with
Article 2 and any decisions taken in consequence thereof available upon
request to the public.
Upon receipt of a description of appropriate national procedures
for environmental impact statements from another Party, the Department
of State shall circulate a copy to all interested federal agencies. The
Department of State shall make such descriptions available upon request
to the public.
Upon receipt from another Party of significant information
obtained, and any action taken in consequence therefrom from procedures
put in place with regard to monitoring pursuant to Articles 2(2) and 5
of Annex I to the Protocol, the Department of State shall circulate a
copy to all interested federal agencies. Notification of receipt of
significant information regarding
[[Page 23544]]
monitoring will be published electronically on the EPA Office of
Federal Activities' World Wide Web Site at: http://es.inel.gov/oeca/
ofa/. The Department of State shall make a copy of this information
available upon request to the public.
Upon receipt of a final CEE from another Party, the Department of
State shall circulate a copy to all interested federal agencies. The
Department of State shall make a copy available upon request to the
public.
IV. Executive Order Clearance
Under Executive Order 12866, [58 FR 51735 (October 4, 1993)] the
EPA must determine whether the regulatory action is ``significant'' and
therefore subject to review by the Office of Management and Budget
(OMB) and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been
determined that this interim final rule is a ``significant regulatory
action.'' Although none of the first three criteria apply, this interim
final rule raises novel legal or policy issues arising out of legal
mandates under P.L. 104-227, the Antarctic Science, Tourism, and
Conservation Act of 1996 and the Protocol on Environmental Protection
to the Antarctic Treaty of 1959. Accordingly, this action was submitted
to OMB for review. Changes made in response to OMB suggestions or
recommendations will be documented in the public record.
V. Regulatory Flexibility Act
The EPA has determined that this interim final rule being issued
today is not subject to the Regulatory Flexibility Act (RFA), which
generally requires an agency to conduct a regulatory flexibility
analysis of any significant impact the interim final rule will have on
a substantial number of small entities. By its terms, the RFA applies
only to rules subject to notice-and-comment rulemaking requirements
under the Administrative Procedure Act (APA) or any other statute.
Today's interim final rule is not subject to notice and comment
requirements under the APA or any other statute. The interim final rule
is subject to the APA, but the EPA has invoked the ``good cause''
exemption under APA, 5 U.S.C. 553(b)(B), from the APA notice and
comment requirements.
The EPA nonetheless believes that because this interim final rule
only requires assessment of environmental impacts the effects on small
businesses will be limited primarily to the cost of preparing such an
analysis and that the requirements are no greater than necessary to
ensure that the United States will be in compliance with its
international obligations under the Protocol and the Treaty. Further,
EPA has included a number of provisions, e.g., incorporation of
information and consolidation of documentation, in this interim final
rule which should minimize the cost of such an analysis.
VI. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. The UMRA does not apply to this
interim final rule because it is necessary for the ratification and
implementation of international treaty obligations. Thus, today's
interim final rule is not subject to the requirements of sections 202
and 205 of the UMRA. In any event, EPA has determined that this interim
final rule does not contain a Federal mandate that may result in annual
expenditures of $100 million or more for State, local, and tribal
governments, in the aggregate, or for the private sector. The EPA has
also determined that this interim final rule contains no regulatory
requirements that might significantly or uniquely affect small
governments under section 203 of the UMRA.
VII. Paperwork Reduction Act
The information collection requirements in this proposed rule have
been submitted for approval to the OMB under the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. Under Section 1320.13 of this Act, EPA has
requested OMB to authorize emergency processing. The OMB's approval was
requested by April 17, 1997. An Information Collection Request (ICR)
document has been prepared by EPA (ICR No. 1808.01) and a copy may be
obtained from Ms. Sandy Farmer, Regulatory Information Division (2136),
U.S. Environmental Protection Agency, 401 M Street, SW., Washington, DC
20460; telephone: (202) 260-2740.
This emergency request for ICR approval along with the Interim
Final Rule are necessary so that implementing regulations will be in
place contemporaneously with the United States' ratification of the
Protocol and in order to implement its obligations under the Protocol
as soon as the Protocol enters into force. The Interim Final Rule
provides nongovernmental operators with the specific environmental
documentation requirements they must meet in order to comply with the
Protocol.
Nongovernmental operators, including tour operators, conducting
expeditions to Antarctica are required to submit environmental
documentation to EPA that evaluates the potential environmental impact
of their proposed activities. If EPA has no comments, or if the
documentation is satisfactorily revised in response to EPA's comments,
and the operator does not receive a notice from EPA that the
environmental documentation does not meet the requirements of Article 8
and Annex I of the Protocol and the provisions of these interim final
regulations, the operator will have no further obligations pursuant to
the applicable requirements of these interim final regulations provided
that any appropriate measures, which may include monitoring, are put in
place to assess and verify the impact of the activity. The type of
environmental document required depends upon the nature and intensity
of the environmental impacts that could result from the activity under
consideration. The interim final rule provides for incorporation of
material into an environmental document by referring to it in the
document when the effect will be to reduce paperwork. Further, an
operator may include more than one proposed expedition within one
environmental document and one environmental document may also be used
to address expeditions being carried out by more than one operator
further reducing burden. For the limited time the Interim Final Rule
will be in effect, the EPA anticipates that operators will make one
submittal per year for all of their expeditions for that year. No
capital costs or operational and maintenance costs are anticipated to
be incurred as a result of this ICR.
Frequency of Reporting: Once per year.
[[Page 23545]]
Affected Public: Businesses, other nongovernmental entities
including for profit entities, and not for profit institutions.
Number of Respondents: 8.
Estimated Average Time Per Respondent: 120 Hours.
Total Annual Burden Hours: 960.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to: review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
VIII. Executive Order 12898, Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The provisions of Executive Order 12898 do not apply to this
regulatory action.
IX. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this interim final rule and other required information to
the U.S. Senate, the U.S. House of Representatives and the Comptroller
General of the General Accounting Office prior to publication of the
interim final rule in today's Federal Register. This interim final rule
is not a ``major rule'' as defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 8
Environmental protection, Antarctica, Enforcement, Environmental
documentation, Environmental impact assessment, Prohibited acts,
Penalties.
Dated: April 23, 1997.
Carol M. Browner,
Administrator.
Therefore, for the reasons set out in the Preamble, Title 40
Chapter 1 of the Code of Federal Regulations is amended by adding a new
Part 8 as follows:
PART 8--ENVIRONMENTAL IMPACT ASSESSMENT OF NONGOVERNMENTAL
ACTIVITIES IN ANTARCTICA
Sec.
8.1 Purpose.
8.2 Applicability and effect.
8.3 Definitions.
8.4 Preparation of environmental documents, generally.
8.5 Submission of environmental documents.
8.6 Preliminary environmental review.
8.7 Initial environmental evaluation.
8.8 Comprehensive environmental evaluation.
8.9 Measures to assess and verify environmental impacts.
8.10 Cases of emergency.
8.11 Prohibited acts, enforcement and penalties.
8.12 Coordination of reviews from other Parties.
Authority: 16 U.S.C. 2401 et seq., as amended, 16 U.S.C. 2403a.
Sec. 8.1 Purpose.
(a) This part is issued pursuant to the Antarctic Science, Tourism,
and Conservation Act of 1996. As provided in that Act, this part
implements the requirements of Article 8 and Annex I to the Protocol on
Environmental Protection to the Antarctic Treaty of 1959 and provides
for:
(1) the environmental impact assessment of nongovernmental
activities, including tourism, for which the United States is required
to give advance notice under paragraph 5 of Article VII of the
Antarctic Treaty of 1959; and
(2) coordination of the review of information regarding
environmental impact assessment received by the United States from
other Parties under the Protocol.
(b) The procedures in this part are designed to: Ensure that
nongovernmental operators identify and assess the potential impacts of
their proposed activities, including tourism, on the Antarctic
environment; that operators consider these impacts in deciding whether
or how to proceed with proposed activities; and that operators provide
environmental documentation pursuant to the Act and Annex I of the
Protocol. These procedures are consistent with and implement the
environmental impact assessment provisions of Article 8 and Annex I to
the Protocol on Environmental Protection to the Antarctic Treaty.
Sec. 8.2 Applicability and effect.
(a) This part is intended to ensure that potential environmental
effects of nongovernmental activities undertaken in Antarctica are
appropriately identified and considered by the operator during the
planning process and that to the extent practicable, appropriate
environmental safeguards which would mitigate or prevent adverse
impacts on the Antarctic environment are identified by the operator.
(b) The requirements set forth in this part apply to
nongovernmental activities for which the United States is required to
give advance notice under paragraph 5 of Article VII of the Antarctic
Treaty of 1959: All nongovernmental expeditions to and within
Antarctica organized in or proceeding from its territory.
(c) This part does not apply to activities undertaken in the
Antarctic Treaty area that are governed by the Convention on the
Conservation of Antarctic Marine Living Resources or the Convention for
the Conservation of Antarctic Seals. Persons traveling to Antarctica
are subject to the requirements of the Marine Mammal Protection Act, 16
U.S.C. 1371 et seq.
(d) This part is effective on April 30, 1997. This part will expire
upon the earlier of the end of the 1998-99 austral summer season or
upon issuance of a final regulation.
Sec. 8.3 Definitions.
As used in this part:
Act means 16 U.S.C. 2401 et seq., Public Law 104-227, the Antarctic
Science, Tourism, and Conservation Act of 1996.
Annex I refers to Annex I, Environmental Impact Assessment, of the
Protocol.
Antarctica means the Antarctic Treaty area; i.e., the area south of
60 degrees south latitude.
Antarctic environment means the natural and physical environment of
Antarctica and its dependent and associated ecosystems, but excludes
social, economic, and other environments.
Antarctic Treaty area means the area south of 60 degrees south
latitude.
Antarctic Treaty Consultative Meeting (ATCM) means a meeting of the
Parties to the Antarctic Treaty, held pursuant to Article IX(1) of the
Treaty.
Comprehensive Environmental Evaluation (CEE) means a study of the
reasonably foreseeable potential effects
[[Page 23546]]
of a proposed activity on the Antarctic environment, prepared in
accordance with the provisions of this part and includes all comments
received thereon. (See: 40 CFR 8.8.)
Environmental document or environmental documentation (Document)
means a preliminary environmental review memorandum, an initial
environmental evaluation, or a comprehensive environmental evaluation.
Environmental impact assessment (EIA) means the environmental
review process required by the provisions of this part and by Annex I
of the Protocol, and includes preparation by the operator and U.S.
government review of an environmental document, and public access to
and circulation of environmental documents to other Parties and the
Committee on Environmental Protection as required by Annex I of the
Protocol.
EPA means the Environmental Protection Agency.
Expedition means any activity undertaken by one or more
nongovernmental persons organized within or proceeding from the United
States to or within the Antarctic Treaty area for which advance
notification is required under Paragraph 5 of Article VII of the
Treaty.
Impact means impact on the Antarctic environment and dependent and
associated ecosystems.
Initial Environmental Evaluation (IEE) means a study of the
reasonably foreseeable potential effects of a proposed activity on the
Antarctic environment prepared in accordance with 40 CFR 8.7.
Operator or operators means any person or persons organizing a
nongovernmental expedition to or within Antarctica.
Person has the meaning given that term in section 1 of title 1,
United States Code, and includes any person subject to the jurisdiction
of the United States except that the term does not include any
department, agency, or other instrumentality of the Federal Government.
Preliminary environmental review means the environmental review
described under that term in 40 CFR 8.6.
Preliminary Environmental Review Memorandum (PERM) means the
documentation supporting the conclusion of the preliminary
environmental review that the impact of a proposed activity will be
less than minor or transitory on the Antarctic environment.
Protocol means the Protocol on Environmental Protection to the
Antarctic Treaty, done at Madrid, October 4, 1991, and all annexes
thereto which are in force for the United States.
This part means 40 CFR part 8.
Sec. 8.4 Preparation of environmental documents, generally.
(a) Basic information requirements. In addition to the information
required pursuant to other sections of this part, all environmental
documents shall contain the following:
(1) The name, mailing address, and phone number of the operator;
(2) The anticipated date(s) of departure of each expedition to
Antarctica;
(3) An estimate of the number of persons in each expedition;
(4) The means of conveyance of expedition(s) to and within
Antarctica;
(5) Estimated length of stay of each expedition in Antarctica;
(6) Information on proposed landing sites in Antarctica; and
(7) Information concerning training of staff, supervision of
expedition members, and what other measures, if any, that will be taken
to avoid or minimize possible environmental impacts.
(b) Preparation of an environmental document. Unless an operator
determines and documents that a proposed activity will have less than a
minor or transitory impact on the Antarctic environment, the operator
will prepare an IEE or CEE in accordance with this part. In making the
determination what level of environmental documentation is appropriate,
the operator should consider, as applicable, whether and to what degree
the proposed activity:
(1) Has the potential to adversely affect the Antarctic
environment;
(2) May adversely affect climate or weather patterns;
(3) May adversely affect air or water quality;
(4) May affect atmospheric, terrestrial (including aquatic),
glacial, or marine environments;
(5) May detrimentally affect the distribution, abundance, or
productivity of species, or populations of species of fauna and flora;
(6) May further jeopardize endangered or threatened species or
populations of such species;
(7) May degrade, or pose substantial risk to, areas of biological,
scientific, historic, aesthetic, or wilderness significance;
(8) Has highly uncertain environmental effects, or involves unique
or unknown environmental risks; or
(9) Together with other activities, the effects of any one of which
is individually insignificant, may have at least minor or transitory
cumulative environmental effects.
(c) Type of environmental document. The type of environmental
document required under this part depends upon the nature and intensity
of the environmental impacts that could result from the activity under
consideration. A PERM must be prepared by the operator to document the
conclusion of the operator's preliminary environmental review that the
impact of a proposed activity on the Antarctic environment will be less
than minor or transitory. (See: 40 CFR 8.6.) An IEE must be prepared by
the operator for proposed activities which may have at least (but no
more than) a minor or transitory impact on the Antarctic environment.
(See: 40 CFR 8.7.) A CEE must be prepared by the operator if an IEE
indicates, or if it is otherwise determined, that a proposed activity
is likely to have more than a minor or transitory impact on the
Antarctic environment (See: 40 CFR 8.8.)
(d) Incorporation of information and consolidation of environmental
documentation (1) An operator may incorporate material into an
environmental document by referring to it in the document when the
effect will be to reduce paperwork without impeding the review of the
environmental document by EPA and other Federal agencies. The
incorporated material shall be cited and its content briefly described.
No material may be incorporated by referring to it in the document
unless it is reasonably available to the EPA.
(2) Provided that environmental documentation complies with all
applicable provisions of Annex I to the Protocol and this part and is
appropriate in light of the specific circumstances of the operator's
proposed expedition or expeditions, an operator may include more than
one proposed expedition within one environmental document and one
environmental document may also be used to address expeditions being
carried out by more than one operator provided that the environmental
document indicates the names of each operator for which the
environmental documentation is being submitted pursuant to obligations
under this part.
Sec. 8.5 Submission of environmental documents.
(a) An operator shall submit environmental documentation to the EPA
for review. The EPA, in consultation with other interested federal
agencies, will carry out a review to determine if the submitted
[[Page 23547]]
environmental documentation meets the requirements of Article 8 and
Annex I of the Protocol and the provisions of this part. The EPA will
provide its comments, if any, on the environmental documentation to the
operator and will consult with the operator regarding any suggested
revisions. If EPA has no comments, or if the documentation is
satisfactorily revised in response to EPA's comments, and the operator
does not receive a notice from EPA that the environmental documentation
does not meet the requirements of Article 8 and Annex I of the Protocol
and the provisions of this part, the operator will have no further
obligations pursuant to the applicable requirements of this part
provided that any appropriate measures, which may include monitoring,
are put in place to assess and verify the impact of the activity.
Alternatively, following final response from the operator, the EPA, in
consultation with other federal agencies and with the concurrence of
the National Science Foundation, will inform the operator that EPA
finds that the environmental documentation does not meet the
requirements of Article 8 and Annex I of the Protocol and the
provisions of this part. If the operator then proceeds with the
expedition without fulfilling the requirements of this part, the
operator is subject to enforcement proceedings pursuant to sections 7,
8, and 9 of the Antarctic Conservation Act, as amended by the Act; 16
U.S.C. 2407, 2408, 2409, and 45 CFR Part 672.
(b) The EPA may waive or modify deadlines pursuant to this part
where EPA determines an operator is acting in good faith and that
circumstances outside the control of the operator created delays,
provided that the environmental documentation fully meets deadlines
under the Protocol.
Sec. 8.6 Preliminary environmental review.
(a) Unless an operator has determined to prepare an IEE or CEE, the
operator shall conduct a preliminary environmental review that assesses
the potential direct and reasonably foreseeable indirect impacts on the
Antarctic environment of the proposed expedition. A Preliminary
Environmental Review Memorandum (PERM) shall contain sufficient detail
to assess whether the proposed activity may have less than a minor or
transitory impact, and shall be submitted to the EPA for review no less
than 180 days before the proposed departure of the expedition. The EPA,
in consultation with other interested federal agencies, will review the
PERM to determine if it is sufficient to demonstrate that the activity
will have less than a minor or transitory impact or whether additional
environmental documentation, i.e., an IEE or CEE, is required to meet
the obligations of Article 8 and Annex I of the Protocol. The EPA will
provide its comments to the operator within fifteen (15) days of
receipt of the PERM, and the operator shall have seventy-five (75) days
to prepare a revised PERM or an IEE, if necessary. Following the final
response from the operator, EPA may make a finding that the
environmental documentation submitted does not meet the requirements of
Article 8 and Annex I of the Protocol and the provisions of this part.
This finding will be made with the concurrence of the National Science
Foundation. If EPA does not provide such notice within thirty (30)
days, the operator will be deemed to have met the requirements of this
part provided that any required procedures, which may include
appropriate monitoring, are put in place to assess and verify the
impact of the activity.
(b) If EPA recommends an IEE and one is prepared and submitted
within the seventy-five (75) day response period, it will be reviewed
under the time frames set out for an IEE in 40 CFR 8.7. If EPA
recommends a CEE and one is prepared, it will be reviewed under the
time frames set out for a CEE in 40 CFR 8.8.
Sec. 8.7 Initial environmental evaluation.
(a) Submission of IEE to the EPA. Unless a PERM has been submitted
pursuant to 40 CFR 8.6 which meets the environmental documentation
requirements under Article 8 and Annex I to the Protocol and the
provisions of this part or a CEE is being prepared, an IEE shall be
submitted by the operator to the EPA no fewer than ninety (90) days
before the proposed departure of the expedition.
(b) Contents. An IEE shall contain sufficient detail to assess
whether a proposed activity may have more than a minor or transitory
impact on the Antarctic environment and shall include the following
information:
(1) A description of the proposed activity, including its purpose,
location, duration, and intensity; and
(2) Consideration of alternatives to the proposed activity and any
impacts that the proposed activity may have on the Antarctic
environment, including consideration of cumulative impacts in light of
existing and known proposed activities.
(c) Further environmental review. (1) The EPA, in consultation with
other interested federal agencies, will review an IEE to determine
whether the IEE meets the requirements under Annex I to the Protocol
and the provisions of this part. The EPA will provide its comments to
the operator within thirty (30) days of receipt of the IEE, and the
operator will have forty-five (45) days to prepare a revised IEE, if
necessary. Following the final response from the operator, EPA may make
a finding that the documentation submitted does not meet the
requirements of Article 8 and Annex I of the Protocol and the
provisions of this part. This finding will be made with the concurrence
of the National Science Foundation. If such a notice is required, EPA
will provide it within fifteen (15) days of receiving the final IEE
from the operator or, if the operator does not provide a final IEE,
within sixty (60) days following EPA's comments on the original IEE. If
EPA does not provide notice within these time limits, the operator will
be deemed to have met the requirements of this part provided that any
required procedures, which may include appropriate monitoring, are put
in place to assess and verify the impact of the activity.
(2) If a CEE is required, the operator must adhere to the time
limits applicable to such documentation. (See: 40 CFR 8.8.) In this
event EPA, at the operator's request, will consult with the operator
regarding possible changes in the proposed activity which would allow
preparation of an IEE.
Sec. 8.8 Comprehensive environmental evaluation.
(a) Preparation of a CEE. Unless a PERM or an IEE has been
submitted and determined to meet the environmental documentation
requirements of this part, the operator shall prepare a CEE. A CEE
shall contain sufficient information to enable informed consideration
of the reasonably foreseeable potential environmental effects of a
proposed activity and possible alternatives to that proposed activity.
A CEE shall include the following:
(1) A description of the proposed activity, including its purpose,
location, duration and intensity, and possible alternatives to the
activity, including the alternative of not proceeding, and the
consequences of those alternatives;
(2) A description of the initial environmental reference state with
which predicted changes are to be compared and a prediction of the
future environmental reference state in the absence of the proposed
activity;
(3) A description of the methods and data used to forecast the
impacts of the proposed activity;
(4) Estimation of the nature, extent, duration and intensity of the
likely direct impacts of the proposed activity;
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(5) A consideration of possible indirect or second order impacts
from the proposed activity;
(6) A consideration of cumulative impacts of the proposed activity
in light of existing activities and other known planned activities;
(7) Identification of measures, including monitoring programs, that
could be taken to minimize or mitigate impacts of the proposed activity
and to detect unforeseen impacts and that could provide early warning
of any adverse effects of the activity as well as to deal promptly and
effectively with accidents;
(8) Identification of unavoidable impacts of the proposed activity;
(9) Consideration of the effects of the proposed activity on the
conduct of scientific research and on other existing uses and values;
(10) An identification of gaps in knowledge and uncertainties
encountered in compiling the information required under this section;
(11) A non-technical summary of the information provided under this
section; and
(12) The name and address of the person or organization which
prepared the CEE and the address to which comments thereon should be
directed.
(b) Submission of Draft CEE to the EPA and Circulation to Other
Parties. (1) For the 1998-1999 season, any operator who plans a
nongovernmental expedition which would require a CEE must submit a
draft of the CEE by December 1, 1997. Within fifteen (15) days of
receipt of the draft CEE, EPA will: send it to the Department of State
which will circulate it to all Parties to the Protocol and forward it
to the Committee for Environmental Protection established by the
Protocol, and publish notice of receipt of the CEE and request for
comments on the CEE in the Federal Register, and will provide copies to
any person upon request. The EPA will accept public comments on the CEE
for a period of ninety (90) days following notice in the Federal
Register. The EPA, in consultation with other interested federal
agencies, will evaluate the CEE to determine if the CEE meets the
requirements under Article 8 and Annex I to the Protocol and the
provisions of this part and will transmit its comments to the operator
within 120 days following publication in the Federal Register of the
notice of availability of the CEE.
(2) The operator shall send a final CEE to EPA at least seventy-
five (75) days before commencement of the proposed activity in the
Antarctic Treaty area. The CEE must include (or summarize) any comments
on the draft CEE received from EPA, the public, and the Parties,
including comments offered at the XXII Antarctic Treaty Consultative
Meeting in 1998. Following the final response from the operator, the
EPA will inform the operator if EPA, with the concurrence of the
National Science Foundation, makes the finding that the environmental
documentation submitted does not meet the requirements of Article 8 and
Annex I of the Protocol and the provisions of this part. This
notification will occur within fifteen (15) days of submittal of the
final CEE by the operator if the final CEE is submitted by the operator
within the time limits set out in this section. If no final CEE is
submitted or the operator fails to meet these time limits, EPA will
provide such notification sixty (60) days prior to departure of the
expedition. If EPA does not provide such notice, the operator will be
deemed to have met the requirements of this part provided that
procedures, which include appropriate monitoring, are put in place to
assess and verify the impact of the activity. The EPA will transmit the
CEE, along with a notice of any decisions by the operator relating
thereto, to the Department of State which shall circulate it to all
Parties no later than sixty (60) days before commencement of the
proposed activity in the Antarctic Treaty area. The EPA will also
publish a notice of availability of the final CEE in the Federal
Register.
(3) No final decision shall be taken to proceed with any activity
for which a CEE is prepared unless there has been an opportunity for
consideration of the draft CEE by the Antarctic Treaty Consultative
Meeting on the advice of the Committee for Environmental Protection,
provided that no expedition need be delayed through the operation of
paragraph 5 of Article 3 to Annex I of the Protocol for longer than 15
months from the date of circulation of the draft CEE.
(c) Decisions based on CEE. The decision to proceed, based on
environmental documentation that meets the requirements under Article 8
and Annex I to the Protocol and the provisions of this part, rests with
the operator. Any decision by an operator on whether to proceed with or
modify a proposed activity for which a CEE was required shall be based
on the CEE and other relevant considerations.
Sec. 8.9 Measures to assess and verify environmental impacts.
(a) The operator shall conduct appropriate monitoring of key
environmental indicators as proposed in the CEE to assess and verify
the potential environmental impacts of activities which are the subject
of a CEE. The operator may also need to carry out monitoring in order
to assess and verify the impact of an activity for which an IEE has
been prepared.
(b) All proposed activities for which an IEE or CEE has been
prepared shall include procedures designed to provide a regular and
verifiable record of the impacts of these activities, in order, inter
alia, to:
(1) Enable assessments to be made of the extent to which such
impacts are consistent with the Protocol; and
(2) Provide information useful for minimizing and mitigating those
impacts, and, where appropriate, information on the need for
suspension, cancellation, or modification of the activity.
Sec. 8.10 Cases of emergency.
This part shall not apply to activities taken in cases of emergency
relating to the safety of human life or of ships, aircraft, equipment
and facilities of high value, or the protection of the environment,
which require an activity to be undertaken without completion of the
procedures set out in this part. Notice of any such activities which
would have otherwise required the preparation of a CEE shall be
provided within fifteen (15) days to the Department of State, as
provided below, for circulation to all Parties to the Protocol and to
the Committee on Environmental Protection, and a full explanation of
the activities carried out shall be provided within forty-five (45)
days of those activities. Notification shall be provided to: The
Director, The Office of Oceans Affairs, OES/OA, Room 5805, Department
of State, 2201 C Street, NW, Washington, DC 20520-7818.
Sec. 8.11 Prohibited acts, enforcement and penalties.
(a) It shall be unlawful for any operator to violate this part.
(b) An operator who violates any of this part is subject to
enforcement, which may include civil and criminal enforcement
proceedings, and penalties, pursuant to sections 7, 8, and 9 of the
Antarctic Conservation Act, as amended by the Act; 16 U.S.C. 2407,
2408, 2409, and 45 CFR part 672.
Sec. 8.12 Coordination of reviews from other Parties.
(a) Upon receipt of a draft CEE from another Party, the Department
of State shall publish notice in the Federal Register and shall
circulate a copy of the CEE to all interested federal agencies. The
Department of State shall coordinate responses from federal
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agencies to the CEE and shall transmit the coordinated response to the
Party which has circulated the CEE. The Department of State shall make
a copy of the CEE available upon request to the public.
(b) Upon receipt of the annual list of IEEs from another Party
prepared in accordance with Article 2 of Annex I and any decisions
taken in consequence thereof, the Department of State shall circulate a
copy to all interested federal agencies. The Department of State shall
make a copy of the list of IEEs prepared in accordance with Article 2
and any decisions taken in consequence thereof available upon request
to the public.
(c) Upon receipt of a description of appropriate national
procedures for environmental impact statements from another Party, the
Department of State shall circulate a copy to all interested federal
agencies. The Department of State shall make a copy of these
descriptions available upon request to the public.
(d) Upon receipt from another Party of significant information
obtained, and any action taken in consequence therefrom from procedures
put in place with regard to monitoring pursuant to Articles 2(2) and 5
of Annex I to the Protocol, the Department of State shall circulate a
copy to all interested federal agencies. The Department of State shall
make a copy of this information available upon request to the public.
(e) Upon receipt from another Party of a final CEE, the Department
of State shall circulate a copy to all interested federal agencies. The
Department of State shall make a copy available upon request to the
public.
[FR Doc. 97-11075 Filed 4-29-97; 8:45 am]
BILLING CODE 6560-50-P