[Federal Register Volume 66, Number 235 (Thursday, December 6, 2001)]
[Rules and Regulations]
[Pages 63454-63472]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-30268]



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Part IV





Environmental Protection Agency





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40 CFR Part 8



Environmental Impact Assessment of Nongovernmental Activities in 
Antarctica; Final Rule

  Federal Register / Vol. 66, No. 235 / Thursday, December 6, 2001 / 
Rules and Regulations  

[[Page 63454]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 8

[FRL-7114-3]
RIN 2020-AA34


Environmental Impact Assessment of Nongovernmental Activities in 
Antarctica

AGENCY: Environmental Protection Agency (EPA).

ACTION: 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 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 final rule 
establishes the requirements 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.

DATES: This rule will be effective on January 7, 2002.

FOR FURTHER INFORMATION CONTACT: Mr. Joseph Montgomery or Ms. Katherine 
Biggs at telephone: (202) 564-7157 or (202) 564-7144, respectively, or 
by mail at: NEPA Compliance Division; Office of Federal Activities 
(2252A); U.S. Environmental Protection Agency; 1200 Pennsylvania 
Avenue, NW; Washington, D.C. 20460.

SUPPLEMENTARY INFORMATION: This preamble is organized according to the 
following outline:
I. Introduction
    A. Statutory Background
    B. Background of the Rulemaking
II. Public Comments on the Proposed Rule and EPA's Response to These 
Comments
III. Description of Program and These Regulations
    A. The Antarctic Treaty and Protocol
    B. The Purpose of These Regulations
    C. Summary of the Protocol
    D. Activities Covered by These 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
    5. Measures to Assess and Verify Environmental Impacts
    E. Incorporation of Information, Consolidation of Environmental 
Documentation, Waiver or Modification of Deadlines, and Provision 
for Multi-Year Environmental Documentation
    F. Submission of Environmental Documents
    G. Prohibited Acts, Enforcement and Penalties
    H. Provision for Categorical Exclusions
IV. Coordination of Review of Information Received from Other 
Parties to the Treaty
V. Administrative Requirements
    A. Executive Order 12866 Clearance
    B. Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA, 5 
U.S.C. 601 et seq.)
    C. Unfunded Mandates Reform Act
    D. Paperwork Reduction Act
    E. National Technology Transfer and Advancement Act of 1995 
(``NTTAA''), Public Law 104-113, Section 12(d) (15 U.S.C. 272 note)
    F. Executive Order 12898, Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    G. Executive Order 13132, Federalism
    H. Executive Order 13175, Consultation and Coordination with 
Tribal Governments
    I. Executive Order 13045, Protection of Children from 
Environmental Health Risks and Safety Risks
    J. Executive Order 13211, Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution and Use
    K. Submission to Congress and the Comptroller General of the 
United States

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

    Although the Act gave the Environmental Protection Agency (EPA) two 
years to promulgate regulations, the United States (U.S.) sought 
immediate ratification of the Protocol which, in turn, required EPA, 
contemporaneous with ratification, to have regulations in effect which 
enabled the U.S. to comply with its obligations under the Protocol. 
Accordingly, on April 30, 1997, EPA promulgated an interim final rule 
so that the United States could ratify the Protocol and implement its 
obligations under the Protocol as soon as the Protocol entered into 
force.
    Because of the importance of facilitating the Protocol's prompt 
entry into force, EPA believed it had 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. Therefore, the interim final regulations were issued 
without notice and an opportunity to comment and, for the same reasons, 
under 5 U.S.C. 553(d)(3), the interim final regulations took effect on 
April 30, 1997.
    Further, EPA believed that public comment on the requirements for 
environmental documentation, including procedures and content, in the 
interim final regulations was unnecessary because the interim final 
regulations incorporated 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 1992. Specifically, language from 
the Protocol was incorporated into the 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 the interim final 
regulations were set out to meet those established by Annex I to the 
Protocol.
    At the time the interim final regulations were promulgated, EPA 
announced its plans to provide extensive opportunities for public 
comment in the development of the proposed final regulations. EPA 
stated the final regulations would be proposed and promulgated in 
accordance with the provisions of the Administrative Procedure Act (5 
U.S.C. 553 et seq.), which generally requires notice to the public, 
description of the substance of the proposed rule and an opportunity 
for public comment. Further, EPA announced that it would prepare under 
the National Environmental Policy Act

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(42 U.S.C. 4321 et seq.) an Environmental Impact Statement (EIS), which 
would consider the environmental impacts of the proposed rule and 
alternatives and address the environmental and regulatory issues raised 
by interested agencies, organizations, groups and individuals. EPA 
stated that the public would have an opportunity to participate in the 
scoping process for the EIS. The Notice of Availability for the ``Draft 
Environmental Impact Statement for the Proposed Rule on Environmental 
Impact Assessment of Nongovernmental Activities in Antarctica'' (DEIS) 
was published in the Federal Register on February 16, 2001; the public 
comment period closed on April 2, 2001. In preparing this final rule, 
EPA considered the comments received on the issues involved with and 
the alternatives presented in the DEIS for this regulatory action.
    The interim final regulations were intended to be limited in time 
and effect to provide for a transition period until the final 
regulations could be developed. This was expected to occur prior to the 
statutory deadline of October 2, 1998. However, during scoping, the 
International Association of Antarctica Tour Operators, individual tour 
operators, and The Antarctica Project/Antarctic and Southern Ocean 
Coalition requested that the deadline for the interim final rule be 
extended to give the operators an opportunity to determine the 
``workability'' of the requirements and then to comment to EPA. After 
consultation with other interested federal agencies, EPA determined 
that this request was reasonable and that additional time to develop 
the final rule would be beneficial. Thus, EPA issued a direct amendment 
to the interim final rule effective July 14, 1998, which extended its 
applicability through the 2000-2001 austral summer. The interim final 
regulations served as the model for these final regulations which are 
described below. Certain aspects of these final regulations are new or 
different from the interim final regulations, including a new provision 
that would allow submission of environmental documentation on a multi-
year basis and a definition of the term ``more than a minor or 
transitory impact.''

II. Public Comments on the Proposed Rule and EPA's Response to 
These Comments

    Five sets of comments were received in response to the June 29, 
2001, notice of proposed rule-making. Comments were received from: two 
federal agencies, the U.S. Department of State and the National Science 
Foundation; tour industry respondents including the International 
Association of Antarctica Tour Operators (IAATO), its U.S. members and 
one non-member; and two non-governmental environmental interest 
organizations including The Antarctica Project on behalf of the 
Antarctic and Southern Ocean Coalition, and the Defenders of Wildlife. 
Most of the comments raised by the industry respondents and the non-
governmental environmental interest organizations were the same or 
similar to comments raised by these entities during scoping for EPA's 
EIS and the subsequent public comment period on the DEIS. The scoping 
comments were considered by EPA in the development of the alternatives 
for the proposed rule-making, and the comments on the DEIS were 
considered by EPA in the development of the proposed rule.
    Federal agencies. The two federal agencies support the rule as 
proposed. One agency supports implementation of the rule as soon as 
possible since the rule supports implementation of the Protocol on 
Environmental Protection to the Antarctic Treaty. The other agency 
commented that the rule, as proposed, is fully responsive to, and 
consistent with, the requirements of the Protocol and EPA's 
implementation authority under the Act.
    Tour industry respondents. The tour industry respondents generally 
support EPA's approach in the proposed rule, particularly the provision 
for multi-year environmental documentation, although they opine that 
certain modifications to reduce regulatory burdens, as previously 
commented to EPA under the EIS scoping and DEIS review process, would 
be appropriate. However, the tour industry respondents did provide 
other specific comments which are addressed below.
    In their previous comments, the tour industry respondents requested 
elimination of EPA's ability to pass on the adequacy of environmental 
documentation and to eliminate the enforcement provision in the rule in 
order to reduce regulatory burden. EPA is not accepting these proposed 
modifications because the Act requires EPA to provide for the 
environmental impact assessment of nongovernmental activities, 
including tourism, for which the U.S. is required to give advance 
notice under paragraph 5 of Article VII of the Treaty in order for the 
U.S. government to implement certain of its obligations under the 
Protocol. The procedures in the rule ensure that: (1) Nongovernmental 
operators identify and assess the potential impacts of their proposed 
activities, including tourism, on the Antarctic environment; (2) 
operators consider these impacts in deciding whether or how to proceed 
with proposed activities; and (3) operators provide environmental 
documentation pursuant to the Act and Annex I of the Protocol. In 
keeping with the U.S. government's obligations under the Protocol and 
EPA's obligations under the Act, under the rule, 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 the regulations. EPA believes that before such a finding 
is made, it is prudent to offer comments to the operator so that the 
operator may, at its discretion, make necessary revisions to the 
document. If the operator proceeded after EPA made a finding that the 
documentation does not meet the requirements of Article 8 and Annex I 
and the requirements of the regulations, the operator would be in 
violation of the regulations and would be subject to enforcement.
    The tour industry respondents requested elimination of Preliminary 
Environmental Review Memorandums (PERMS) in order to reduce regulatory 
burden. EPA is not accepting this proposed modification because the 
preliminary environmental review process that may result in PERM-level 
environmental documentation is significantly different from submitting 
the basic information delineated in 40 CFR 8.4(a) of the rule, 
information similar to that submitted by operators for advance 
notification purposes. Simply submitting this information does not 
constitute the preliminary environmental review process as delineated 
in 40 CFR 8.6 of the rule for PERMS. EPA notes that, to date, none of 
the U.S.-based operators has submitted PERM-level documentation for its 
final environmental document.
    The tour industry respondents requested that the rule provide for 
automatic reciprocity when environmental documentation is prepared for 
other Treaty Parties in order to reduce regulatory burden. EPA is not 
accepting this proposed modification because it is the responsibility 
of the U.S. government to comply with its obligations under the 
Protocol. The U.S. government would need to determine whether on a 
case-by-case basis it could rely on the regulatory procedures of 
another Party. Therefore, EPA believes that a discretionary process 
should not be included in the rule.
    To reduce regulatory burden, the tour industry respondents 
requested that the rule provide a ``categorical exclusion''

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from the requirement to prepare environmental documentation for ship-
based tourism conducted according to the ``Lindblad model.'' EPA is not 
accepting this proposed modification for the following reasons. As 
discussed in the Preamble at section III.H., the National Environmental 
Policy Act (NEPA) defines ``categorical exclusion'' as ``a category of 
actions which do not individually or cumulatively have a significant 
effect on the human environment * * * and for which, therefore, neither 
an environmental assessment nor an environmental impact statement is 
required'' (40 CFR 1508.4). Only narrow and specific classes of 
activities can be categorically excluded from environmental review. For 
example, EPA in its NEPA regulations at 40 CFR 6.107(d) excludes ``* * 
* actions which are solely directed toward minor rehabilitation of 
existing facilities * * *'' and the National Science Foundation in its 
environmental assessment regulations at 45 CFR 641(c)(1) and (2) 
excludes certain scientific activities (e.g., use of weather/research 
balloons that are to be retrieved) and interior remodeling and 
renovation of existing facilities. EPA does not have a specific 
definition for the ``Lindblad model.'' EPA also believes that a broad 
categorical exclusion covering ship-based tourism as now conducted does 
not fit well with the approach used by the U.S. government for 
categorical exclusions because it does not identify actions to be 
excluded in sufficient detail. Further, more needs to be known about 
potential cumulative impacts of nongovernmental activities undertaken 
by U.S.-based ship-based tour operators before deciding to exclude some 
or all of these specific activities. Categorical exclusions can be 
designated by amendment to the rule if categorical exclusion activities 
are identified in the future. Any such amendment to the rule would be 
subject to notice and comment.
    The tour industry respondents requested that the rule clarify that 
even if mitigation is not carried out as described in the environmental 
documentation, this would not subject an operator to enforcement action 
or otherwise place an operator in violation of its obligations under 
the Protocol, the Act and EPA's implementing regulations. EPA is not 
accepting this proposed modification for the following reasons. EPA 
recognizes that the rule requires only that environmental documentation 
be prepared and does not specifically require implementation of either 
the activities, as described, or the planned mitigation measures. 
However, if, for example, an operator proposes to mitigate the 
potential environmental impacts associated with a proposed activity, 
and the assessment of the proposed activity without the mitigative 
measures would be greater than minor or transitory effects, EPA assumes 
the operator will proceed with these mitigation measures. Otherwise, to 
be in compliance with the provisions of the rule, the operator's 
decision might have been to prepare a CEE, a different level of 
environmental documentation used when the reasonably foreseeable 
potential environmental effects of a proposed activity are likely to be 
more than minor or transitory. (e.g., if planned mitigation measures 
are the basis for the level of documentation there is an obligation on 
the part of the operator to implement the planned mitigation, 
otherwise, the level of documentation might not have met the 
requirements of the Protocol and the regulations.)
    Further, EPA assumes the activities will be undertaken as planned 
and described because, based on experience to date, the planned 
mitigation measures are generally one of the following: requirements or 
prohibitions of federal laws (for example, tour vessels are operated 
according to the domestic legislation of its flag state that gives 
effect to MARPOL, U.S.-based tour operators adhere to applicable 
domestic statutes and regulations, and staff are trained and passengers 
educated on the mandates and prohibitions of the Treaty, the Protocol, 
and U.S. regulations); adopted recommendations under the Antarctic 
Treaty System (for example, certain mitigation measures include staff 
training and passenger education on Recommendation XVIII-1); and, for 
most U.S.-based ship-based tour operators, requirements for membership 
under IAATO's Bylaws (for example, certain mitigation measures include 
adherence to the membership provisions of the IAATO Bylaws, 
specifically, agreement not to have more than 100 passengers ashore at 
any one site at the same time). EPA acknowledges that section 
II.D.3.(d), Mitigation, in the proposed rule's Preamble (section 
III.D.3.(d) in the Preamble to this final rule) was not in the Preamble 
to the Interim Final Rule. However, section II.D.5, Measures to Assess 
and Verify Environmental Impacts, in the Preamble to the Interim Final 
Rule states in the example for activities requiring an IEE that the 
information could include, as appropriate, ``* * * description of any 
activity requiring mitigation, the mitigative actions undertaken, and 
the actual or projected outcome of the mitigation'' (italics added for 
emphasis). Once again, EPA believes that if an operator chooses to 
mitigate and the mitigation measures are the basis for the level of 
environmental documentation, EPA assumes the operator will proceed with 
these mitigation measures. Otherwise, the level of documentation may 
not have met the requirements of Article 8 and Annex I and the 
provisions of the regulations. Were an operator to fail to comply with 
these regulations, the operator could be subject to enforcement under 
the provisions listed in 40 CFR 8.11.
    The tour industry respondents requested that EPA, in the Preamble 
to the rule, confirm the respondents' interpretation of the nature of 
the requirements of section 8.9, measures to assess and verify 
environmental impacts, including that operators are under no regulatory 
obligation to submit post-season reports related to the assessment and 
verification of environmental impacts to EPA (or to any other Federal 
agency), that operators are responsible for deciding whether and how to 
proceed with proposed activities, and that operators are not subject to 
any regulatory requirement to make assessment and verification 
information available to EPA. These same issues were addressed by EPA 
in the Information Collection Request, Part C of the Supporting 
Statement, for the Interim Final Rule and have been addressed by EPA in 
the Supporting Statement for the Information Collection Request for 
this rule. With regard to assessment and verification information, the 
Protocol, and thus the Act, requires that operators have procedures 
designed to provide a regular and verifiable record of the impacts of 
their activities. Like the Interim Final Rule, such a provision has 
been incorporated into this final rule in order to ensure that the U.S. 
government has the ability to implement its environmental impact 
assessment obligations for nongovernmental operators under the 
Protocol, including a requirement that operators have procedures 
designed to provide a regular and verifiable record of the impacts of 
these activities. EPA believes that this establishes a requirement that 
the information be available to EPA in order to verify that the 
operator has assessment and verification procedures. Otherwise, there 
would be no way to know if an operator was in compliance with this 
requirement of the regulation. Operators are currently voluntarily 
providing this information to the

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government, thus it is available to EPA. As indicated in the 
regulations (40 CFR 8.1(b)), this Preamble (section III.C.), and the 
Supporting Statement for the Information Collection Request for this 
rule (section 2(b)), the operator is responsible for deciding whether 
or how to proceed with proposed activities.
    The tour industry respondents requested that EPA clarify in the 
final rule that, at least in the near term, the Agency does not expect 
environmental documentation to include assessment of cumulative impacts 
in that information is currently insufficient to determine whether such 
impacts are in fact likely. EPA is not accepting this proposed 
modification because, as acknowledged by the tour industry respondents, 
Annex I includes consideration of cumulative impacts in light of 
existing and known planned activities for IEE and CEE level 
documentation. In order to remain consistent with Annex I, the final 
rule requires the same. However, EPA believes that, to date, the IEEs 
submitted by U.S.-based operators have contained sufficient detail to 
assess whether proposed activities may have more than a minor or 
transitory impact on the Antarctic environment including consideration 
of cumulative impacts in light of existing and known proposed 
activities. EPA further believes that the operators' conclusions to 
date, including those for cumulative impacts, have been supported by 
the information currently available. (e.g., based on the current 
scientific studies, there is no evidence of cumulative environmental 
impacts related to tourism.) However, the issue of cumulative impacts, 
particularly in the Peninsula area, remains a concern in light of such 
factors as the increasing number of tour operators, expeditions, and 
passengers landed; the number of sites visited; and the frequency with 
which certain sites are visited. For these reasons, EPA jointly 
sponsored a workshop with the National Science Foundation and IAATO to 
consider the issue of possible cumulative environmental impacts 
associated with ship-based tourism. Amongst other things, the workshop 
discussions exemplified the difficulties of identifying cumulative 
impacts related specifically to tourism. (For example, research 
findings suggest that most of the variability associated with the 
decline in Adelie penguins can be explained by the effects of climate 
change, and tourism is not having a measurable impact on Adelie penguin 
populations in the Palmer Station area.) As data and information become 
available on cumulative impacts, the operators may, as appropriate, 
decide to modify their activities and/or their mitigation measures, or 
they may determine that a different level of environmental 
documentation is appropriate. To date, however, EPA believes that the 
IEEs prepared by the U.S.-based operators have identified and assessed 
the potential environmental consequences associated with their planned 
activities, including cumulative impacts.
    Non-governmental environmental interest organizations. One of the 
non-governmental environmental interest organizations incorporated by 
reference the comments it made to EPA during the scoping process for 
the DEIS for the proposed rule and on the DEIS. Comments in these 
attachments either reiterate comments provided by the commentor on the 
proposed rule and/or provide recommendations that were considered in 
EPA's preparation of the DEIS for this rule-making. EPA has focused its 
response to the issues specifically addressed in the commentor's letter 
on the proposed rule except where both non-governmental environmental 
interest organizations provided comment on the same issue; any such 
issues are specifically responded to below.
    Both of the non-governmental environmental interest organizations 
supported EPA's decision not to categorically exclude Antarctic ship-
based tourism organized under the ``Lindblad Model.'' One of the 
commentors does not believe that categorical exclusions are appropriate 
for any type of non-emergency activity in Antarctica. EPA disagrees 
with this opinion. Although no activities have yet been identified that 
can be categorically excluded, EPA believes this regulatory option 
should not be precluded automatically. EPA reiterates that categorical 
exclusions can be designated by amendment to the rule if such 
activities are identified in the future. Any such amendment to the rule 
would be subject to notice and comment.
    One of the non-governmental environmental interest organizations 
supported a provision for multi-year environmental documentation and 
the other objected to the multi-expedition/multi-year environmental 
documentation provisions. EPA is not removing these provisions from the 
final rule for the following reasons. EPA believes that the 
environmental impact assessment process documented in the IEEs prepared 
by the U.S.-based operators that have included multiple expeditions by 
a single operator, and by more than one operator, have identified the 
potential environmental impacts, including direct, indirect and 
cumulative impacts. The assessment process employed by the operators 
under the regulations is the same as that delineated in Article 8 and 
Annex I. EPA believes this process can be, and has been, applied 
appropriately to multiple expeditions by a single operator, or by more 
than one operator. Further, the multi-year provision is applicable only 
if the conditions described in the document, including the assessment 
of cumulative impacts, are unchanged. An operator would need to take 
into account any additional data or information obtained over the 
course of the five-year life of the environmental document and if the 
conditions described in the initial multi-year document are changed by 
this data or information, then the operator would need to submit 
supplemental environmental documentation that appropriately addresses 
this information relative to the operator's planned activities as 
delineated in the multi-year document. If, for example, a new activity 
is added, this information can be submitted as a supplement to the 
multi-year document provided that this does not change the overall 
assessment of impacts and conclusion by the operator (e.g., for an IEE, 
the potential impacts are no more than minor or transitory).
    One of the non-governmental environmental interest organizations 
supported the multi-year environmental documentation provision but 
recommended that operators submit some form of annual certification, 
under the enforcement sanctions provision, that there have been no 
change in the conditions described in the multi-year document. EPA is 
not accepting this proposed modification to the multi-year provision 
because this requirement, including the enforcement sanction provision, 
is implicit in 40 CFR 8.4(e). If the operator were to continue with 
planned expeditions that do not meet the conditions described in the 
multi-year document, the operator's documentation may not met the 
requirements of Article 8 and Annex I and the requirements of the rule 
and the operator could, therefore, be subject to enforcement under 40 
CFR 8.11.
    Both of the non-governmental environmental interest organizations 
disagree with defining in the rule ``more than a minor or transitory 
impact'' as having the same meaning as the term ``significantly'' as 
defined in regulations under the National Environmental Policy Act at 
40 CFR 1508.27. EPA is retaining this definition for the following 
reasons. The Protocol does not define ``minor or transitory.'' Until 
the Antarctic Treaty Consultative

[[Page 63458]]

Meeting (ATCM) provides guidance or definition, EPA believes it is 
reasonable to provide such guidance to operators and that it is prudent 
to define the term ``more than a minor or transitory impact'' 
consistent with the threshold definition applied to the environmental 
impact assessment of governmental activities in Antarctica as 
delineated in 16 U.S.C. 2401 et seq. If a definition were to be 
provided under the Protocol or other appropriate means under the 
Treaty, EPA would amend its final rule, as appropriate, to ensure it is 
consistent with Annex I as required by the Act. Contrary to the 
commentors' assertions, as with the Protocol, NEPA's starting point is 
the environment. As stated in 40 CFR 1500.1, NEPA ``is our basic 
national charter for protection of the environment'' (italics added for 
emphasis).
    Both of the non-governmental environmental interest organizations 
commented on public review of IEEs. One commentor agreed with EPA's 
process for advertising the public availability of IEEs on its website 
and the schedule for IEE reviews. The other commentor recommended a 
regulatory provision for EPA to advertise the availability of IEEs on 
its website and for public comment on IEEs. EPA is not accepting these 
proposed modifications because this process is required by Article 8 
and Annex I only for CEEs. EPA will continue to publish notice of 
availability of IEEs on its website. Based on its experience to date, 
there has been no evidence that interested parties have been unable to 
obtain IEEs and to offer comments to the operators under this 
notification scheme. EPA believes that including a regulatory provision 
for public notice and comment on IEEs would not necessarily reduce 
environmental impacts (e.g., an operator's conclusion for an IEE would 
remain that the potential impacts of the proposed activity will be no 
more than minor or transitory). It would, however, impose obligations 
and undue burden on U.S. nongovernmental operators not required under 
Annex I or the Act, and would not be consistent with the environmental 
impact assessment requirements that apply to U.S. governmental entities 
for activities in Antarctica. C.f. 45 CFR 641.10 through 641.22 
(National Science Foundation regulations for assessing impacts of 
governmental activities in Antarctica).
    Both of the non-governmental environmental interest organizations 
commented on the schedules for environmental documentation submission 
and review. One commentor recommended that EPA change either the 
default provisions that provide for approval of nongovernmental 
activities or extend the time period in which it can respond to 
environmental documentation. The other commentor believes the dates 
listed for CEEs are inaccurate and recommends that CEEs be required 180 
days prior to the next ATCM rather than on December 1 since the 
December 1 date assumes the ATCMs will be on schedule for spring 
meetings which is not always the case. Regarding the first comment, 
under the final rule, EPA does not ``approve'' activities. EPA, in 
consultation with other interested Federal agencies, will review the 
environmental documentation to determine whether it meets the 
requirements of Article 8, Annex I and the regulations. Regarding the 
comments on the schedules for review, EPA is not accepting the 
commentors' proposed modifications because it believes the schedules in 
the rule are reasonable, as has been demonstrated by experience under 
the Interim Final Rule. Further, these schedules conform to the 
necessary time frames should an operator decide, based on comments 
offered by EPA, to revise the document or to submit a higher level of 
environmental documentation. Regarding the recommendation to change the 
submission for CEEs to 180 days before the next ATCM, EPA believes this 
is not reasonable nor is it warranted. The ATCM traditionally has been 
held in the May-June time frame, although the Protocol does not dictate 
this schedule. The date of the ATCM may vary. While it is possible that 
the meeting schedule would be set early enough to allow time for an 
operator to submit a draft CEE 180 days before the next ATCM, this is 
not certain. This commentor also expressed concern that since an 
activity cannot be held up for more than 15 months, there may not be 
time for the operator to address comments received at the ATCM, 
particularly if the ATCM is held relatively close to the beginning of 
the Antarctic tourist season. The final rule states that a draft CEE 
must be submitted by December 1 of the preceding year. The 15-month 
clock does not begin on the date the CEE is submitted to the State 
Department, but rather starts on the date the State Department 
circulates the draft CEE to the Parties to the Protocol and the 
Committee for Environmental Protection. Thus, even if the draft CEE was 
circulated by the State Department as early as mid-December, the 15-
month clock for this project would run through mid-March of the next 
season which falls after the end of the regular tourist season for that 
year.
    One of the non-governmental environmental interest organizations 
commented that it believes the rule proceeds on a number of erroneous 
factual, legal and policy conclusions, that it insufficiently 
implements the mandate of Congress in legislating the Act, and will 
inadequately protect the Antarctic environment for nongovernmental 
activities conducted there, particularly tourism. EPA disagrees with 
this opinion. EPA sought assistance from the Department of State, the 
Department of Justice and the National Science Foundation on factual, 
legal and policy issues.
    One of the non-governmental environmental interest organizations 
reiterated its concern that the rule proceeds on the assumption that 
Antarctic tourism is limited, controlled and easily subject to self-
regulation by the industry, and that the projections for increases in 
Antarctic tourism have been deliberately understated perhaps requiring 
a new round of regulatory review in 5-10 years. EPA disagrees with 
these opinions. In keeping with the purpose and need for this rule-
making, EPA's objective during the rule-making process, including the 
DEIS for the proposed rule, has not been to analyze the magnitude and 
impact of tourism on the Antarctic environment but rather to evaluate 
the environmental impacts of the alternatives for the final rule. EPA 
disagrees that the projections for increases in Antarctic tourism have 
been deliberately understated. The projections used by EPA are based on 
the available data and information in referenced sources in the DEIS. 
The rule delineates the environmental impact assessment process, a 
process that accounts for increases in tourism and assessment of any 
potential impacts, including cumulative impacts, that could result from 
such increases. EPA does not believe that increases in tourism will 
necessarily require new regulatory review. Rather, to the extent that 
increases in tourism would have the potential to result in impacts that 
are more than minor or transitory, an operator would prepare a CEE to 
be in compliance with the regulations.
    One of the non-governmental environmental interest organizations' 
primary objections to the legal conclusions propounded in the rule 
includes objection that the rule does not broaden the definition of 
``operator;'' in the opinion of the commentor, section 4(a)(6) of the 
Act extends applicability of the Act, and thus the rule, to any person 
who organizes, sponsors, operates or promotes a non-governmental 
expedition to the United States, and who does business in the

[[Page 63459]]

United States. In response, the authority for EPA's rule-making is 16 
U.S.C. 2401 et. seq., as amended, 16 U.S.C. 2403a. EPA does not believe 
that section 2403(a)(6) (e.g., section 4(a)(6) of the Act) is germane 
to this rule-making. EPA sought legal, and programmatic, assistance 
from the Department of State, the Department of Justice and the 
National Science Foundation on this issue; EPA stands by this analysis.
    One of the non-governmental environmental interest organizations' 
primary objections to the legal conclusions propounded in the rule 
includes its opinion that the rule should include a requirement that 
environmental documentation demonstrate compliance with applicable 
Protocol and statutory provisions; further, the Act does not require 
parity between governmental and nongovernmental activities in this 
regard. EPA is not accepting this proposed modification for the 
following reasons. First, certain provisions of the Act are the 
responsibility of other federal agencies. Further, rather than imposing 
a blanket requirement that may add unnecessary burden on the operator, 
EPA maintains that the EIA documentation provides the mechanism to 
identify whether a proposed activity raises issues under other 
obligations of the Protocol or domestic law which need further review 
by the responsible authority. Operators may, and do, reference 
compliance with appropriate Protocol provisions and U.S. regulations as 
planned mitigation measures for their activities, measures which 
support the level of environmental documentation for the planned 
activities. A mandatory blanket requirement to demonstrate compliance 
would impose obligations not required under Annex I or the Act and 
would require considerations that may have no relevance to the activity 
and, thus, no effect in reducing environmental impacts. EPA 
acknowledges that the Act does not require consistency between the 
governmental and nongovernmental environmental impact assessment 
processes and regulations. However, regardless of whether the 
activities are governmental or nongovernmental, it is the U.S. 
government that has the responsibility to ensure that the U.S. is able 
to comply with its obligations under the Protocol. The National Science 
Foundation is charged with this responsibility for governmental 
activities, and EPA for purposes of nongovernmental activities. EPA 
believes it is reasonable that the governmental and nongovernmental 
processes be consistent with regard to the requirements of Article 8 
and Annex I to the Protocol.
    One of the non-governmental environmental interest organizations' 
primary objections to the legal conclusions propounded in the rule 
includes its opinion that Article 3 of the Protocol, unlike NEPA, 
imposes substantive requirements and because the rule does not impose 
substantive requirements, nongovernmental operators can file IEEs and 
CEEs that disclose substantial risks to the Antarctic environment or 
associated and dependent ecosystems and those activities could be 
approved. EPA sought legal, and programmatic, assistance from the 
Department of State and the National Science Foundation on the Article 
3 issue. It is the U.S. government's position that Article 3 of the 
Protocol does not impose substantive obligations. Thus, EPA is not 
accepting this proposed modification. Further, as noted above, as with 
the Interim Final Rule, under the final rule, EPA does not ``approve'' 
activities. EPA, in consultation with other interested federal 
agencies, will review the environmental documentation to determine 
whether it meets the requirements of Article 8 and Annex I and the 
regulations.
    One of the non-governmental environmental interest organizations 
expressed concerns that the Preamble language discussing harmonization 
between regulation of governmental and nongovernmental actors and cost/
benefit analyses of the provisions of the rule have the effect of 
narrowing the scope of the regulatory regime. This commentor also 
maintains the regulatory regime is also narrowed by EPA's argument that 
if enhanced regulation and enforcement is adopted, U.S.-based operators 
will simply move to another country to evade such regulation or 
enforcement. EPA acknowledges that the Act does not require consistency 
between the governmental and nongovernmental environmental impact 
assessment processes and regulations. However, regardless of whether 
the activities are governmental or nongovernmental, it is the U.S. 
government that has the responsibility to ensure that the U.S. is able 
to comply with its obligations under the Protocol. As discussed above, 
the National Science Foundation is charged with this responsibility for 
governmental activities, and EPA for purposes of nongovernmental 
activities. EPA believes it is reasonable that the governmental and 
nongovernmental processes be consistent with regard to the requirements 
of Article 8 and Annex I of the Protocol. EPA further acknowledges that 
neither the Protocol nor the Act dictates a cost-benefit requirement 
but that it gave consideration to, amongst other things, the concern 
that U.S.-based operators continue to do business as U.S. operators and 
not move their Antarctic business operations to a non-Party country 
because of any undue burden imposed by the final rule. However, this 
was one of several considerations that EPA believed was reasonable in 
its analysis of the alternatives for the rule-making in the DEIS and 
the process to promulgate the final rule.
    One of the non-governmental environmental interest organizations 
expressed concern that the Preamble language discussing IEEs as the 
appropriate level of environmental documentation has the effect of 
corrupting the integrity of the environmental impact assessment process 
and narrowing the scope of the regulatory regime. EPA disagrees with 
this opinion. The Preamble at section III.D.3.(b) includes reference to 
not only ATCM Recommendation XVIII-1 but also the relevant provisions 
of other U.S. statutes and Annexes II-V to the Protocol. The 
information in the Preamble is not regulatory, rather it is a guideline 
to operators. The regulations state the mandatory requirements that 
must be met by operators and include the criteria for the level of 
environmental documentation. EPA believes that providing a level of 
guidance to those subject to regulation does not corrupt the integrity 
of the regulatory process. Contrary to the commentor's assertion that 
EPA has made a conclusory statement regarding IEEs, including that a 
CEE may not be called for in some cases for nongovernmental activities, 
EPA's view is that, as stated in the Preamble, at a minimum, an IEE is 
the appropriate level of environmental documentation where multiples of 
the activity over time are likely and may create a cumulative impact.
    One of the non-governmental environmental interest organizations 
expressed concern that the Preamble language discussing the criteria 
for a CEE narrows the scope of the regulatory regime. EPA disagrees 
with this opinion. In section III.D.4., EPA provides the new crushed 
rock airstrip or runway example as a level of guidance to those subject 
to regulation. EPA disagrees that a 10% increase in tourism activity 
would automatically trigger the need for a CEE. As with any activity, 
including the runway example or a 10% increase in tourism, the rule 
delineates the environmental impact assessment process to be employed 
by

[[Page 63460]]

an operator to determine the level of potential impact for the proposed 
activity and, thus, the level of environmental documentation required 
by the rule.
    This final rule is being promulgated without change in response to 
comments for the reasons stated above and because these regulations are 
consistent with Annex I to the Protocol and ensure that the U.S. 
government is able to meet its obligations under the Protocol. This 
final rule ensures 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. This final rule also provides for coordination 
of the review of information regarding environmental impact assessment 
received from other Parties under the Protocol.

III. Description of Program and These 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 that may arise, and 
freezes territorial claims. Currently 27 countries participate in 
decision-making under the Treaty as Consultative Parties. Eighteen 
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 Regulations

    The purpose of these final regulations is to provide for the 
evaluation of the potential environmental impact 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. The Treaty requires notice of, inter 
alia, ``all expeditions to Antarctica organized in or proceeding from'' 
the United States. In addition, these regulations provide for 
coordination of reviews of draft CEEs received from other Parties, in 
accordance with the Protocol. The Act states that these regulations are 
to be consistent with Annex I to the Protocol.
    Among other things, these regulations specify the procedures that 
need to 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 regulations include considerations and elements 
relevant to environmental documentation of the evaluation, as well as 
procedures for submission of environmental documentation that allow the 
EPA to review whether the evaluation meets the provisions of the 
regulations and the requirements of Annex I of the Protocol.
    Operators currently provide information prior to each Antarctic 
summer season 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 Section 
8.4(a) of these regulations. While operators would be required to 
include this information in environmental documentation, they could 
also continue to provide this information directly to the Department of 
State.

C. Summary of the Protocol

    This 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 
environmental impact assessment. If an activity will have an impact 
that is less than minor or transitory, only a preliminary environmental 
assessment would need to be submitted in accordance with these 
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 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 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

[[Page 63461]]

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.
    Environmental impact assessments 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 Regulations

1. Persons Required to Carry Out an EIA
    The requirements of these 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 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 regulations would include 
trips by yachts, skiing or mountaineering expeditions, privately funded 
research expeditions, and other nongovernmental or nongovernment-
sponsored activities.
    These 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 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 approach, these 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 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 regulations.
    To promote consistency regarding environmental documentation, EPA 
intends to consult with the National Science Foundation and other U.S. 
government agencies with appropriate 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 
regulations.
3. Appropriate Level of Environmental Documentation
    (a) Preliminary Environmental Review Memorandum (PERM). These 
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 submitted environmental 
documentation does not meet the requirements of Article 8 and Annex I 
of the Protocol and the provisions of these regulations. This finding 
will be made with the concurrence of the National Science Foundation. 
If EPA does not provide notice of such a finding within thirty (30) 
days, the operator will be deemed to have met the requirements of these 
regulations.
    If EPA recommends an IEE and one is prepared and submitted within 
the seventy-five (75) day response period,

[[Page 63462]]

the schedule for review will follow the time frames set out for an IEE 
in these 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 that will result in 
physical impacts, which may include, but are not 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, which has been confirmed by its experience under the 
interim final regulations, that, at a 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 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.
    Any operator who wishes to make an expedition to Antarctica 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 regulations that the PERM fails to meet the 
requirements under Annex I to the Protocol and the provisions of these 
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 regulations. This 
finding will be made with the concurrence of the National Science 
Foundation. If a notice of such a finding 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 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 that 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://www.epa.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 of Annex I of the Protocol and any decisions taken in 
consequence thereof. Any IEE prepared in accordance with these 
regulations will 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 circulated 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 2001 ATCM occurred in July, CEEs prepared for nongovernmental 
activities in the 2001-2002 season would have to have been distributed 
by March 2001. Operators who are anticipating activities for the 2002-
2003 season that may require a CEE are encouraged to consult with the 
EPA as soon as possible.
    In order to meet the requirements of Article 3(4), of Annex I of 
the Protocol which requires that draft CEEs be circulated to all 
Parties and forwarded to the Committee 120 days in advance of the next 
Antarctic Treaty Consultative Meeting at which the CEE may be 
addressed, and because the ATCM generally meets in May, the regulations 
require the operator to submit a draft CEE the preceding December in 
order to ensure its timely distribution to all Parties and the 
Committee. Thus, for example, for the 2002-2003 season, any operator 
who plans an activity which would require a CEE will need to submit a 
draft of the CEE to EPA by December 1, 2001. Within fifteen (15) days 
of receipt of the draft CEE, EPA will send it to the Department of 
State for transmittal to other Parties, publish notice of receipt of 
the CEE in the Federal Register, and 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 regulations. EPA 
will 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 must prepare a final CEE that addresses and includes or 
summarizes any comments on the draft CEE received from EPA, the public 
and the Parties. The final CEE must be sent to EPA at least seventy-
five (75) days before the proposed departure date. Following the final 
response from the operator, the EPA will notify the operator if EPA, 
with the concurrence of the National Science Foundation, makes the 
finding that the submitted environmental documentation does not meet 
the requirements of Article 8 and Annex I of the Protocol and the 
provisions of these 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 regulations. If 
no final CEE is submitted by the operator, or if the operator fails to 
meet

[[Page 63463]]

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 regulations, the operator will be 
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 
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 will 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 to the CEE. 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.
    (d) Mitigation. If an operator chooses to mitigate the 
environmental impacts of its activity and the mitigation measures are 
the basis for the level of environmental documentation, EPA will assume 
that the operator will undertake these mitigation measures. Otherwise, 
the documentation may not have met the requirements of Article 8 and 
Annex I and the provisions of these regulations.
4. Criteria for a CEE
    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 that represents a major departure from current nongovernmental 
activities, resulting in a large increase in an 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 that 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 regulations 
as is used in determining if a Federal activity will have a significant 
effect for purposes of the National Environmental Policy Act (NEPA). 
See 40 CFR 1508.27. For this reason, for purposes of these regulations 
and consistent with the environmental impact assessment regulations for 
federal activities, the term ``more than a minor or transitory impact'' 
has been defined to have the same meaning as the term ``significantly'' 
under NEPA. 16 U.S.C. 2403a(a)(1)(B); 40 CFR 1508.27. The 
recommendation to add this definition to these regulations was made to 
EPA during the scoping process and was considered in the DEIS prepared 
by EPA.
5. Measures To Assess and Verify Environmental Impacts
    The Protocol and these regulations require an operator to employ 
procedures to assess and provide a regular and verifiable record of the 
actual impacts of any activity that proceeds on the basis of an IEE or 
CEE. The record developed through these measures must 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; the 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; verification 
that guidelines for tourists are followed; description of any tourist 
exceptions to the landing guidelines; and a description of any activity 
requiring mitigation, the mitigative actions undertaken, and the actual 
or projected outcome of the mitigation.
    These regulations do not set out detailed monitoring procedures for 
activities requiring a CEE because the Parties are still working to 
identify monitoring approaches that 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 would consult with the National Science 
Foundation and other interested federal agencies regarding this 
monitoring regime.

E. Incorporation of Information, Consolidation of Environmental 
Documentation, Waiver or Modification of Deadlines, and Provision for 
Multi-Year Environmental Documentation

    The EPA is strongly committed to minimizing unnecessary paperwork 
and to implementation of these 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 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

[[Page 63464]]

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 that are 
applicable to some or all of the proposed expeditions; (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 regulations; and (4) one environmental document may be 
submitted by one or more operators for proposed expeditions for a 
period of up to five consecutive austral summer seasons, provided that 
the conditions described in the multi-year environmental document, 
including the assessment of cumulative impacts, are unchanged. The 
multi-year provision also allows operators to update basic information 
and to provide information on additional activities to supplement the 
multi-year environmental document without having to revise and re-
submit the entire document. Further, the EPA may waive or modify the 
deadlines of these regulations 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. The multi-year documentation 
provision was recommended to EPA during the scoping process and was 
considered in the DEIS prepared by EPA.

F. Submission of Environmental Documents

    The operator must submit five copies of its environmental 
documentation, along with an electronic copy in HTML format, if 
available, to the EPA by mail at: U.S. Environmental Protection Agency; 
Office of Federal Activities; Director, NEPA Compliance Division--Mail 
Code 2252A; 1200 Pennsylvania Avenue, NW; 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; 
Director, NEPA Compliance Division--Room 7239A; Ariel Rios Building; 
1200 Pennsylvania Avenue, NW; Washington, DC 20004.
    An operator may submit environmental documentation at an earlier 
date than required by this 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 
rule.

G. Prohibited Acts, Enforcement and Penalties

    It is unlawful for any operator to violate these regulations. An 
operator who violates any of these regulations will be subject to 
enforcement proceedings, 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.

H. Provision for Categorical Exclusions

    The National Environmental Policy Act defines `categorical 
exclusion' as ``a category of actions which do not individually or 
cumulatively have a significant effect on the human environment * * * 
and for which, therefore, neither an environmental assessment nor an 
environmental impact statement is required'' (40 CFR 1508.4). Only 
narrow and specific classes of activities can be categorically excluded 
from environmental review. For example, EPA in its NEPA regulations at 
40 CFR 6.107(d) excludes * * * actions which are solely directed toward 
minor rehabilitation of existing facilities * * * and the National 
Science Foundation in its environmental assessment regulations at 45 
CFR 641(c)(1) and (2) excludes certain scientific activities (e.g., use 
of weather/research balloons that are to be retrieved) and interior 
remodeling and renovation of existing facilities. The DEIS considered a 
modification that would add a provision for categorical exclusion. The 
DEIS noted that the International Association of Antarctica Tour 
Operators (IAATO) recommended that Antarctic ship-based tourism 
organized under the ``Lindblad Model'' be categorically excluded. 
However, EPA does not have a specific definition for the ``Lindblad 
Model.'' EPA also believes that a broad categorical exclusion covering 
ship-based tourism as now conducted does not fit well with the approach 
used by the U.S. government for categorical exclusions because it does 
not identify actions to be excluded in sufficient detail. Further, more 
needs to be known about potential cumulative impacts of nongovernmental 
activities undertaken by U.S.-based ship-based tour operators before 
deciding to exclude some or all of these specific activities. In the 
Preamble to the proposed rule, EPA requested comments on specific 
activities that the Agency should consider including as categorical 
exclusions in the final rule including the justification for this 
proposed designation. EPA did not receive any such comments, therefore, 
the final rule does not include a provision for categorical exclusions. 
However, if categorical exclusion activities are identified in the 
future, the rule could be amended.

IV. 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 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 
will publish notice of receipt in the Federal Register and will 
circulate a copy of the CEE to all interested federal agencies. The 
Department of State will coordinate responses from federal agencies to 
the CEE and will transmit the coordinated response, if any, to the 
Party that has circulated the CEE. The Department of State will 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 will circulate a copy to 
all interested federal agencies. The Department of State will make a 
copy of any list of IEEs from other Parties prepared in accordance

[[Page 63465]]

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 assessments from another Party, the Department 
of State will circulate a copy to all interested federal agencies. The 
Department of State will 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 will circulate a 
copy to all interested federal agencies. The Department of State will 
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 will circulate a copy to all interested federal agencies. The 
Department of State will make a copy available upon request to the 
public.

V. Administrative Requirements

A. Executive Order 12866 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 the Executive Order and to review by the Office of 
Management and Budget (OMB). 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 rule is a ``significant regulatory action.'' This 
rule raises novel legal or policy issues arising out of legal mandates 
under Public Law 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 are documented in the public record.

B. Regulatory Flexibility Act (RFA), as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA, 5 U.S.C. 601 et 
seq.)

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administration with the North American Industry 
Classification System (NAICS) code for ``Tour Operators'' (NAICS code 
561520) with maximum annual receipts of $5.0 million (13 CFR part 121); 
and (2) a small organization that is any not-for-profit enterprise 
which is independently owned and operated and is not dominant in its 
field. Under the Antarctic Science, Tourism, and Conservation Act of 
1996, governmental jurisdictions are not subject to this rulemaking.
    For purposes of assessing the potential impacts of the rule on 
small entities, EPA assessed the potential impacts the rule may have on 
the U.S.-based operators regulated under the interim final rule, that 
is, those for which the United States provided advance notice under 
Paragraph 5 of Article VII of the Treaty for proposed nongovernmental 
expeditions organized in or proceeding from the U.S. to the Antarctic 
Treaty area during the austral summer season 2000-2001, and other U.S.-
based operators included in such documentation. The screening 
assessment indicated that of the twelve operators, four would qualify 
as small entities under the Small Business Administration definition. 
EPA has estimated that these small entities have annual operating 
expenditures (small organization) or annual sales (small business) 
ranging from about $100,000 to about $4,600,000. Based on costs 
estimated under the interim final rule, EPA estimated the potential 
impact on these small entities to range from an average of about $1,400 
to about $4,200 for the 5-year period a multi-year environmental 
document could be in effect; this represents an impact in the range of 
less than 1% to about 1.4%. Even if the small entities did not take 
advantage of the additional cost-saving alternative provided in the 
multi-year provision of the rule, the impact of the rule would range 
from an average of about $2,300 to $6,800 for the same 5-year period. 
Of the four small entities subject to today's rule, only one may be 
impacted significantly. Therefore, this rule will not impact a 
substantial number of small entities. Moreover, the potential impact on 
that small entity arguably is not significant. In addition, as 
discussed below, EPA included in today's rule cost-saving alternatives 
that are available to all operators, including small operators. Under 
the interim final rule, all operators made use of the cost-saving 
alternatives and EPA expects them to continue using these alternatives 
and the additional alternative included in today's rule.
    The cost reduction provisions in this final rule include: (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; (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 regulations; and (4) one 
environmental document may be submitted by one or more operators for 
proposed expeditions for a period of up to five consecutive austral 
summer seasons, provided that the conditions described in the multi-
year environmental document, including the assessment of cumulative 
impacts, are unchanged. The multi-year provision also allows operators 
to update basic information and to provide information on additional 
activities to supplement the multi-year environmental document without 
having to revise and re-submit the entire document. Further, the EPA 
may waive or modify the deadlines of these regulations where EPA 
determines an operator is acting in good faith and that circumstances 
outside the control

[[Page 63466]]

of the operator created delays, provided that environmental 
documentation fully meets deadlines under the Protocol.
    In determining whether a rule has a significant economic impact on 
a substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analysis is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604. 
Thus, an agency may certify that a rule will not have a significant 
economic impact on a substantial number of small entities if the rule 
relieves regulatory burden, or otherwise has a positive economic effect 
on all of the small entities subject to the rule. The EPA believes 
that, because this rule only requires assessment of environmental 
impacts, the effects on any small entities 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. The costs are likely to be minimal because, in EPA's view, 
the types of activities currently being carried out typically will be 
unlikely to have impacts that are more than minor or transitory 
assuming that the 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. Therefore, most activities 
will likely need only IEE documentation, the cost of which is minimal 
as shown in section VII, Paperwork Reduction Act. Further, EPA has 
included provisions in this final rule that are available to all 
respondents, including small entities, that will have a positive effect 
by minimizing the cost of such an analysis.
    Therefore, after considering the economic impacts of today's final 
rule on small entities, I certify that this action will not have a 
significant economic impact on a substantial number of small entities.

C. 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. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year.
    Today's rule contains no Federal mandates for State, local, or 
tribal governments or the private sector. Furthermore, the UMRA does 
not apply to rules that are necessary for the national security or the 
ratification or implementation of international treaty obligations. 
These regulations are necessary to enable the United States to 
implement its obligations under the Protocol on Environmental 
Protection to the Antarctic Treaty of 1959. This rule does not apply to 
any governmental jurisdictions. For the private sector, there are 
currently less than 20 regulated operators and, because of the nature 
of business and the Antarctic location, this number is not expected to 
increase significantly. Moreover, as described in section V.B., above, 
this final rule provides alternatives that may be used by operators to 
reduce the burden and costs associated with the rule.

D. Paperwork Reduction Act

    The Office of Management and Budget (OMB) has approved the 
information collection requirements contained in this rule under the 
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and 
has assigned OMB control number 2020-0007.
    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 provisions of the 
Protocol on Environmental Protection to the Antarctic Treaty of 1959. 
The Act provides that EPA must 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 for 
coordination of the review of information regarding environmental 
impact assessment received from other Parties under the Protocol. This 
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 regulations, 
the operator would have no further obligations pursuant to the 
applicable requirements of these 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. Nongovernmental operators would be able to use the 
following approaches for submission of the environmental documentation 
required under the final rule: (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; (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 regulations; and (4) one environmental document may be 
submitted by one or more operators for proposed expeditions for a 
period of up to five consecutive austral summer seasons, provided that 
the conditions described in the multi-year environmental document, 
including the assessment of cumulative impacts, are unchanged. The 
multi-year provision also allows operators to update basic information 
and to provide information on additional activities to supplement the 
multi-year environmental document without having to revise and re-
submit the entire document. EPA anticipates that operators will make 
one submittal per year for all of their expeditions for that year and 
that most operators will be able to use the multi-year environmental 
documentation provision. EPA does not expect or anticipate receipt of 
any confidential information. No capital costs or operational and 
maintenance

[[Page 63467]]

costs are anticipated to be incurred as a result of this ICR.
    Frequency of Reporting: Once per year.
    Affected Public: Businesses, other nongovernmental entities 
including for profit entities, and not-for-profit institutions.
    Number of Respondents: 13 to 14.
    Estimated Average Time Per Respondent: 29 to 185 Hours depending on 
the anticipated level of environmental documentation and the paperwork 
reduction provisions employed by the respondent.
    Total Annual Burden Hours: 377 to 562 Hours depending on the 
anticipated level of environmental documentation and the paperwork 
reduction provisions employed by the respondent.
    Estimated Average Cost Per Respondent To Prepare and Submit 
Environmental Documentation for the First Year: $2,668 to $13,405 
depending on the anticipated level of environmental documentation and 
the paperwork reduction provisions employed by the respondent.
    Estimated Average Cost Per Respondent To Prepare and Submit 
Environmental Documentation for Subsequent Years: $1,844 to $14,117 
depending on the anticipated level of environmental documentation and 
the paperwork reduction provisions employed by the respondent.
    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.

E. National Technology Transfer and Advancement Act of 1995 
(``NTTAA''), Public Law 104-113, Section 12(d) (15 U.S.C. 272 note)

    As noted in the proposed rule, section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (``NTTAA''), Public Law 
104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use 
voluntary consensus standards in its regulatory activities unless to do 
so would be inconsistent with applicable law or otherwise impractical. 
Voluntary consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, and business 
practices) that are developed or adopted by voluntary consensus 
standards bodies. The NTTAA directs EPA to provide Congress, through 
OMB, explanations when the Agency decides not to use available and 
applicable voluntary consensus standards. This rulemaking does not 
involve technical standards.

F. Executive Order 12898, Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898, Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, 56 FR 7629 
(1994), requires each Federal agency, to the greatest extent 
practicable and permitted by law, to make achieving environmental 
justice part of its mission by identifying and addressing, as 
appropriate, disproportionately high and adverse human health or 
environmental effects of its programs, policies, and activities on 
minority or low-income populations, including Indian tribes. The 
provisions of Executive Order 12898 do not apply to this regulatory 
action because it does not have any effects on minority or low income 
populations.

G. Executive Order 13132, Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This final rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. No governmental jurisdictions 
including Federal, State, local and tribal governments are subject to 
this rulemaking. Thus, Executive Order 13132 does not apply to this 
rule.

H. Executive Order 13175, Consultation and Coordination with Tribal 
Governments

    Executive Order 13175 took effect on January 6, 2001, and revoked 
Executive Order 13084 (Tribal Consultation) as of that date. EPA 
developed the proposed rule, however, during the period when Executive 
Order 13084 was in effect. Thus, EPA addressed tribal considerations 
under Executive Order 13084. Executive Order 13175, Consultation and 
Coordination with Tribal Governments, requires federal agencies to 
adhere to certain fundamental principles and policy making criteria 
when formulating or implementing policies with tribal implications and 
to establish a process to ensure that tribal officials have the 
opportunity to provide meaningful and timely input into regulatory 
policies that have tribal implications. Tribal governments are not 
subject to this rulemaking. Thus, neither Executive Order 13084 nor 
Executive Order 13175 apply to this rule.

I. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks,'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) is determined to be ``economically significant'' 
as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that EPA has reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, the Agency must evaluate the environmental health 
or safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency. This final 
rule is not subject to Executive Order 13045 because it does not 
establish an environmental standard intended to mitigate health or 
safety risks.

[[Page 63468]]

J. Executive Order 13211, Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution and Use

    Executive Order 13211 requires federal agencies to prepare a 
Statement of Energy Effects and to submit such statements to the Office 
of Management and Budget. This final rule is not subject to Executive 
Order 13211 because it does not significantly affect energy supply, 
distribution or use.

K. Submission to Congress and the Comptroller General of the United 
States

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that, before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective on January 7, 2002.

List of Subjects in 40 CFR Part 8

    Environmental protection, Antarctica, Environmental impact 
statements, Penalties, Reporting and recordkeeping requirements.

    Dated: November 29, 2001.
Christine Todd Whitman,
Administrator.

    Therefore, for the reasons set forth in the Preamble, EPA hereby 
amends title 40 chapter 1 of the Code of Federal Regulations by 
revising part 8 to read 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.


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.
    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.
    Antarctica means the Antarctic Treaty area; i.e., the area south of 
60 degrees south latitude.
    Comprehensive Environmental Evaluation (CEE) means a study of the 
reasonably foreseeable potential effects of a proposed activity on the 
Antarctic environment, prepared in accordance with the provisions of 
this part and includes all comments received thereon. (See: Sec. 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

[[Page 63469]]

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 Sec. 8.7.
    More than a minor or transitory impact has the same meaning as the 
term ``significantly'' as defined in regulations under the National 
Environmental Policy Act at 40 CFR 1508.27.
    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 Sec. 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 Sec. 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 Sec. 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 Sec. 8.8.)
    (d) Incorporation of information, consolidation of environmental 
documentation, and multi-year 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.
    (e) Multi-year environmental documentation. (1) Provided that 
environmental documentation complies with all applicable provisions of 
Annex I to the Protocol and this part, an operator may submit 
environmental documentation for proposed expeditions for a period of up 
to five consecutive austral summer seasons, provided that the 
conditions described in the multi-year environmental document, 
including the assessment of cumulative impacts, are unchanged and meets 
the provisions of paragraphs (e)(1) (i) through (iii) of this section.
    (i) The operator shall identify the environmental documentation 
submitted for multi-year documentation purposes in the first year it is 
submitted. If the operator, or operators, fail to make this initial 
identification to EPA, this provision shall not be in effect although 
subsequent years' submissions by the operator, or operators, may use 
this environmental documentation as provided in paragraphs (d) (1) and 
(2) of this section.
    (ii) In subsequent years, up to a total maximum of five years, the 
operator, or operators, shall reference the multi-year documentation 
identified initially if it is necessary to update the basic

[[Page 63470]]

information requirements listed in paragraph (a) of this section.
    (iii) An operator, or operators, may supplement a multi-year 
environmental document for an additional activity or activities by 
providing information regarding the proposed activity in accordance 
with the appropriate provisions of this part. The operator, or 
operators, shall identify this submission as a proposed supplement to 
the multi-year documentation in effect. Addition of the supplemental 
information shall not extend the period of the multi-year environmental 
documentation beyond the time period associated with the documentation 
as originally submitted.
    (2) Multi-year environmental documentation may include more than 
one proposed expedition within the environmental document and the 
multi-year 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.
    (3) The schedules for multi-year environmental documentation depend 
on the level of the environmental document and shall be the same as the 
schedules for comparable environmental documentation submitted on an 
annual basis; e.g., a multi-year PERM shall comply with the schedule in 
Sec. 8.6, a multi-year IEE shall comply with the schedule in Sec. 8.7, 
and a multi-year CEE shall comply with the schedule in Sec. 8.8. These 
schedules apply to the operator's submission of the initial multi-year 
environmental document; the operator's subsequent annual submissions 
pursuant to paragraphs (e)(1) (ii) and (iii) of this section; EPA's 
review, in consultation with other interested federal agencies, and 
comment on the multi-year environmental documentation and subsequent 
annual submissions; and a finding the EPA may make, with the 
concurrence of the National Science Foundation, 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.


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 
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 Sec. 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 Sec. 8.8.


Sec. 8.7  Initial environmental evaluation.

    (a) Submission of IEE to the EPA. Unless a PERM has been submitted 
pursuant to Sec. 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

[[Page 63471]]

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: Sec. 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;
    (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) Any operator who plans a nongovernmental expedition that 
would require a CEE must submit a draft of the CEE by December 1 of the 
preceding year. 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 address and must include (or 
summarize) any comments on the draft CEE received from EPA, the public, 
and the Parties. 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.

[[Page 63472]]

    (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 in this paragraph, 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 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 assessments 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. 01-30268 Filed 12-5-01; 8:45 am]
BILLING CODE 6560-50-P