[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;

[[Page 23548]]

    (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

[[Page 23549]]

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