[Federal Register Volume 86, Number 99 (Tuesday, May 25, 2021)]
[Rules and Regulations]
[Pages 27985-27988]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-10807]


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NATIONAL SCIENCE FOUNDATION

45 CFR Part 670

RIN 3145-AA59


Conservation of Antarctic Animals and Plants

AGENCY: National Science Foundation.

ACTION: Final rule.

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SUMMARY: Pursuant to the Antarctic Conservation Act of 1978, as 
amended, the National Science Foundation (NSF) is amending its 
regulations to reflect changes to Annex II to the Protocol on 
Environmental Protection to the Antarctic Treaty (Protocol) agreed to 
by the Antarctic Treaty Consultative Parties. These changes reflect the 
outcomes of a legally binding Measure already adopted by the Parties at 
the Thirty-Second Antarctic Treaty Consultative Meeting (ATCM) in 
Baltimore, MD (2009).

DATES: Effective May 25, 2021.

FOR FURTHER INFORMATION CONTACT: Bijan Gilanshah, Assistant General 
Counsel, Office of the General Counsel, at 703-292-8060, National 
Science Foundation, 2415 Eisenhower Avenue, W 18200, Alexandria, VA 
22314.

SUPPLEMENTARY INFORMATION: Measure 16 (2009) was adopted at the Thirty-
Second ATCM at Baltimore, MD, on April 17, 2009 and amends Annex II to 
the Protocol. The revisions were composed primarily of minor 
clarifying, editorial and technical updates which would result in 
generally insignificant changes in current practice or legal 
requirements. For example, Antarctic terrestrial and freshwater 
invertebrates (generally microscopic or miniscule) are already 
protected by statute and regulation from ``harmful interference'' and 
related permitting requirements. These Annex II changes brought such 
protections in line with other Antarctic species for purposes of 
``takes'' of such organisms. Other changes would also result in no 
significant change in U.S. practice, including changes to language in 
Annex II regarding criteria for taking zoo specimens, criteria for 
introduction of non-native species, and criteria for lethal takings of 
specially protected species, etc. Finally, one change removes an 
erroneous reference to ``marine algae'' in the current regulation and a 
new section is added specifically designating Antarctic native 
invertebrates.
    The Antarctic Conservation Act of 1978, as amended (``ACA'') (16 
U.S.C. 2401, et seq.) implements the Protocol. Section 2405 of title 16 
of the ACA directs the Director of the National

[[Page 27986]]

Science Foundation to issue such regulations as are necessary and 
appropriate to implement Annex II to the Protocol. Accordingly, these 
revisions reflect the changes to Annex II as formally adopted by the 
ATCM.

Public Participation

    The changes merely reflect decisions already made by the Antarctic 
Treaty Parties. Because these amendments involve a foreign affairs 
function, the provisions of Executive Order 12866 and the 
Administrative Procedure Act (5 U.S.C. 553), requiring notice of 
proposed rulemaking, opportunity for public participation, and delay in 
effective date, are inapplicable. Further, because no notice of 
proposed rulemaking is required for this rule, the Regulatory 
Flexibility Act (5 U.S.C. 601-612) does not apply.

Environmental Impact

    This final rule makes conforming changes to the National Science 
Foundation's regulations to reflect the outcomes of the Antarctic 
Treaty Consultative Meeting in 2009. No assessment is required under 
Executive Order 12114 of January 4, 1979.

No Takings Implications

    The Foundation has determined that the final rule will not involve 
the taking of private property pursuant to Executive Order 12630.

Civil Justice Reform

    The Foundation has considered this final rule under Executive Order 
12988 on civil justice reform and determined the principles underlying 
and requirements of Executive Order 12988 are not implicated.

Federalism and Consultation and Coordination With Indian Tribal 
Governments

    The Foundation has considered this final rule under the 
requirements of Executive Order 13132 on federalism and has determined 
that the final rule conforms with the federalism principles set out in 
this Executive Order; will not impose any compliance costs on the 
States; and will not have substantial direct effects on the States, the 
relationship between the Federal government and the States, or the 
distribution of power and responsibilities among the various levels of 
government. Therefore, the Foundation has determined that no further 
assessment of federalism implications is necessary. Moreover, the 
Foundation has determined that promulgation of this final rule does not 
require advance consultation with Indian Tribal officials as set forth 
in Executive Order 13175, Consultation and Coordination with Indian 
Tribal Governments.

Energy Effects

    The Foundation has reviewed this final rule under Executive Order 
13211, Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use. The Foundation has determined that this 
final rule does not constitute a significant energy action as defined 
in the Executive Order.

Unfunded Mandates

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), the Foundation has assessed the effects of this 
final rule on State, local, and Tribal governments and the private 
sector. This final rule will not compel the expenditure of $100 million 
or more by any State, local, or Tribal government or anyone in the 
private sector. Therefore, a statement under section 202 of the Act is 
not required.

Controlling Paperwork Burdens on the Public

    This final rule does not contain any recordkeeping or reporting 
requirements or other information collection requirements as defined in 
5 CFR part 1320 that are not already required by law or not already 
approved for use. Accordingly, the review provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its implementing 
regulations at 5 CFR part 1320 do not apply.

Congressional Review Act

    The Office of Information and Regulatory Affairs in the Office of 
Management and Budget has determined that this action is not a major 
rule as defined by Subtitle E of the Small Business Regulatory 
Enforcement Fairness Act of 1996 (known as the Congressional Review Act 
or CRA)), 5 U.S.C. 804(2). This action will not result in: ``an annual 
effect on the economy of $100,000,000 or more; a major increase in 
costs or prices for consumers, individual industries, Federal, State, 
or local government agencies, or geographic regions; or significant 
adverse effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based enterprises to 
compete with foreign-based enterprises in domestic and export 
markets.'' However, pursuant to the CRA, NSF will submit a copy of this 
final rule to both Houses of Congress and to the Comptroller General.

List of Subjects in 45 CFR Part 670

    Administrative practice and procedure, Antarctica, Exports, 
Imports, Plants, Wildlife.

    Pursuant to the authority granted by 16 U.S.C. 2405(a)(1), NSF 
hereby amends 45 CFR part 670 as set forth below:

PART 670--[AMENDED]

0
1. The authority citation for part 670 continues to read as follows:

    Authority: 16 U.S.C. 2405, as amended.


0
2. Amend Sec.  670.2 by revising paragraphs (a) and (d) to read as 
follows:


Sec.  670.2  Scope.

* * * * *
    (a) Taking mammals, birds, plants, or invertebrates native to 
Antarctica.
* * * * *
    (d) Receiving, acquiring, transporting, offering for sale, selling, 
purchasing, importing, exporting or having custody, control, or 
possession of any mammal, bird, plant or invertebrate, native to 
Antarctica that was taken in violation of the Act.
* * * * *


0
3. Revise Sec.  670.3 to read as follows:


Sec.  670.3  Definitions.

    In this part:
    Act means the Antarctic Conservation Act of 1978, Public Law 95-541 
(16 U.S.C. 2401 et seq.) as amended by the Antarctic Science, Tourism, 
and Conservation Act of 1996, Public Law 104-227.
    Antarctic Specially Protected Area means an area designated by the 
Antarctic Treaty Parties to protect outstanding environmental, 
scientific, historic, aesthetic, or wilderness values or to protect 
ongoing or planned scientific research, designated in subpart F of this 
part.
    Antarctica means the area south of 60 degrees south latitude.
    Director means the Director of the National Science Foundation, or 
an officer or employee of the Foundation designated by the Director.
    Harmful interference means--
    (1) Flying or landing helicopters or other aircraft in a manner 
that disturbs concentrations of native birds or seals;
    (2) Using vehicles or vessels, including hovercraft and small 
boats, in a manner that disturbs concentrations of native birds or 
seals;
    (3) Using explosives or firearms in a manner that disturbs 
concentrations of native birds or seals;
    (4) Willfully disturbing breeding or molting birds or 
concentrations of native birds or seals by persons on foot;

[[Page 27987]]

    (5) Significantly damaging concentrations of native terrestrial 
plants by landing aircraft, driving vehicles, or walking on them, or by 
other means; and
    (6) Any activity that results in the significant adverse 
modification of habitats of any species or population of native mammal, 
native bird, native plant, or native invertebrate.
    Import means to land on, bring into, or introduce into, or attempt 
to land on, bring into or introduce into, any place subject to the 
jurisdiction of the United States, including the 12-mile territorial 
sea of the United States, whether or not such act constitutes an 
importation within the meaning of the customs laws of the United 
States.
    Management plan means a plan to manage the activities and protect 
the special value or values in an Antarctic Specially Protected Area 
designated by the United States as such a site consistent with plans 
adopted by the Antarctic Treaty Consultative Parties.
    Native bird means any member, at any stage of its life cycle, of 
any species of the class Aves which is indigenous to Antarctica or 
occurs there seasonally through natural migrations, that is designated 
in subpart D of this part. It includes any part, product, egg, or 
offspring of or the dead body or parts thereof excluding fossils.
    Native invertebrate means any member of any species of terrestrial 
or freshwater invertebrate, at any stage of its life cycle, which is 
indigenous to Antarctica. It includes any part thereof, but excludes 
fossils.
    Native mammal means any member, at any stage of its life cycle, of 
any species of the class Mammalia, which is indigenous to Antarctica or 
occurs there naturally through migrations, that is designated in 
subpart D of this part. It includes any part, product, offspring of or 
the dead body or parts thereof but excludes fossils.
    Native plant means any member of any species of terrestrial or 
freshwater vegetation, including bryophytes, lichens, fungi, and algae, 
at any stage of its life cycle which is indigenous to Antarctica that 
is designated in subpart D of this part. It includes seeds and other 
propagules, or parts of such vegetation, but excludes fossils.
    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 and any department, agency, or other 
instrumentality of the Federal Government or of any State or local 
government.
    Protocol means the Protocol on Environmental Protection to the 
Antarctic Treaty, signed October 4, 1991, in Madrid, and all annexes 
thereto, including any future amendments to which the United States is 
a Party.
    Specially Protected Species means any native species designated as 
a Specially Protected Species that is designated in subpart E of this 
part.
    Take or taking means to kill, injure, capture, handle, or molest a 
native mammal or bird, or to remove or damage such quantities of native 
plants or invertebrates that their local distribution or abundance 
would be significantly affected or to attempt to engage in such 
conduct.
    Treaty means the Antarctic Treaty signed in Washington, DC on 
December 1, 1959.
    United States means the several states of the Union, the District 
of Columbia, the Commonwealth of Puerto Rico, American Samoa, the 
Virgin Islands, Guam, the Commonwealth of the Northern Mariana Islands, 
and other commonwealth, territory, or possession of the United States.


0
4. Amend Sec.  670.4 by revising paragraphs (a), (d), and (e) to read 
as follows:


Sec.  670.4  Prohibited acts.

* * * * *
    (a) Taking of native mammal, bird, plants or invertebrates. It is 
unlawful for any person to take within Antarctica a native mammal, a 
native bird, native plants or native invertebrates.
* * * * *
    (d) Possession, sale, export, and import of native mammals, birds, 
plants and invertebrates. It is unlawful for any person to receive, 
acquire, transport, offer for sale, sell, purchase, export, import, or 
have custody, control, or possession of, any native bird, native 
mammal, native plant or native invertebrate which the person knows, or 
in the exercise of due care should have known, was taken in violation 
of the Act.
    (e) Introduction of non-indigenous species into Antarctica. It is 
unlawful for any person to introduce into Antarctica any species which 
is not indigenous to Antarctica or which does not occur there naturally 
through migrations, as specified in subpart H of this part, except as 
provided in Sec. Sec.  670.7 and 670.8.
* * * * *


0
5. Revise Sec.  670.6 to read as follows:


Sec.  670.6  Prior possession exception.

    (a) Exception. Section 670.4 shall not apply to:
    (1) Any native mammal, bird, plant or invertebrate which is held in 
captivity on or before October 28, 1978; or
    (2) Any offspring of such mammal, bird, plant or invertebrate.
    (b) Presumption. With respect to any prohibited act set forth in 
Sec.  670.4 which occurs after April 29, 1979, the Act creates a 
rebuttable presumption that the native mammal, bird, plant or 
invertebrate involved in such act was not held in captivity on or 
before October 28, 1978, or was not an offspring referred to in 
paragraph (a) of this section.


0
6. Revise Sec.  670.8 to read as follows:


Sec.  670.8  Foreign permit exception.

    Section 670.4(d) and (e) shall not apply to transporting, carrying, 
receiving, or possessing native mammals, native plants, native 
invertebrates or native birds or to the introduction of non-indigenous 
species when conducted by an agency of the United States Government on 
behalf of a foreign national operating under a permit issued by a 
foreign government to give effect to the Protocol.


0
7. Amend Sec.  670.11 by revising paragraphs (a)(2) and (5) to read as 
follows:


Sec.  670.11  Applications for permits.

    (a) * * *
    (2) Where the applicant seeks to engage in a taking:
    (i) The scientific names, numbers, and description of native 
mammals, native birds, native plants or native invertebrates to be 
taken; and
    (ii) Whether the native mammals, birds, plants, invertebrates or 
part of them are to be imported into the United States, and if so, 
their ultimate disposition.
* * * * *
    (5) Where the application is for the introduction of non-indigenous 
living organisms, the scientific name and number to be introduced;
* * * * *


0
8. Revise Sec.  670.17 to read as follows:


Sec.  670.17  Specific issuance criteria.

    With the exception of specially protected species of mammals, 
birds, plants and invertebrates designated in subpart E of this part, 
permits to engage in a taking or harmful interference:
    (a) May be issued only for the purpose of providing--
    (1) Specimens for scientific study or scientific information; or
    (2) Specimens for museums, or other educational uses; or
    (3) Specimens for zoological gardens, but with respect to native 
mammals or

[[Page 27988]]

birds, only if such specimens cannot be obtained from existing captive 
collections elsewhere, or if there is a compelling conservation 
requirement; and
    (4) For unavoidable consequences of scientific activities or the 
construction and operation of scientific support facilities; and
    (b) Shall ensure, as far as possible, that--
    (1) No more native mammals, birds, plants or invertebrates are 
taken than are necessary to meet the purposes set forth in paragraph 
(a) of this section;
    (2) No more native mammals or native birds are taken in any year 
than can normally be replaced by net natural reproduction in the 
following breeding season;
    (3) The variety of species and the balance of the natural 
ecological systems within Antarctica are maintained; and
    (4) The authorized taking, transporting, carrying, or shipping of 
any native mammal or bird is carried out in a humane manner.


Sec.  670.21  [Amended]

0
8. Amend Sec.  670.21 by removing the term ``Marine algae''.


0
9. Add Sec.  670.22 to read as follows:


Sec.  670.22  Designation of native invertebrates.

    The following are designated native invertebrates:

Mites
Nematodes
Rotifers
Springtails
Tardigrades


0
10. Amend Sec.  670.23 by revising the introductory text and paragraph 
(c) to read as follows:


Sec.  670.23  Specific issuance criteria.

    Permits authorizing the taking of mammals, birds, plants, or 
invertebrates designated as a Specially Protected Species of mammals, 
birds, and plants in Sec.  670.25 may only be issued if:
* * * * *
    (c) The taking involves non-lethal techniques, where appropriate. 
Lethal techniques may only be used on Specially Protected Species where 
there is no suitable alternative technique; and
* * * * *


0
11. Amend Sec.  670.25 by revising the section heading to read as 
follows:


Sec.  670.25  Designation of specially protected species of native 
mammals, birds, plants, and invertebrates.

* * * * *


0
12. Revise Sec.  670.31 to read as follows:


Sec.  670.31  Specific issuance criteria for imports.

    Subject to compliance with other applicable law, any person who 
takes a native mammal, bird, plant or invertebrate under a permit 
issued under the regulations in this part may import it into the United 
States unless the Director finds that the importation would not further 
the purpose for which it was taken. If the importation is for a purpose 
other than that for which the native mammal, bird, plant or 
invertebrate was taken, the Director may permit importation upon a 
finding that importation would be consistent with the purposes of the 
Act, the regulations in this part, or the permit under which they were 
taken.


0
13. Revise Sec.  670.32 to read as follows:


Sec.  670.32  Specific issuance criteria for exports.

    The Director may permit export from the United States of any native 
mammal, bird, plant or invertebrate taken within Antarctica upon a 
finding that exportation would be consistent with the purposes of the 
Act, the regulations in this part, or the permit under which they were 
taken.


0
13. Amend Sec.  670.33 by revising the introductory text to read as 
follows:


Sec.  670.33  Content of permit applications.

    In addition to the information required in subpart C of this part, 
an applicant seeking a permit to import into or export from the United 
States a native mammal, a native bird, native plants or native 
invertebrates taken within Antarctica shall include the following in 
the application:
* * * * *


0
14. Amend Sec.  670.34 by revising paragraph (a) introductory text to 
read as follows:


Sec.  670.34  Entry and exit ports.

    (a) Any native mammal, native bird, native invertebrates or native 
plants taken within Antarctica that are imported into or exported from 
the United States must enter or leave the United States at ports 
designated by the Secretary of Interior in 50 CFR part 14. The ports 
currently designated are:
* * * * *


0
15. Revise Sec.  670.36 to read as follows:


Sec.  670.36  Specific issuance criteria.

    (a) For purposes consistent with the Act, only the following 
species may be considered for a permit allowing their introduction into 
Antarctica:
    (1) Cultivated plants and their reproductive propagules for 
controlled use; and
    (2) Species of living organisms including viruses, bacteria, 
yeasts, and fungi, for controlled experimental use.
    (b) Living non-indigenous species of birds shall not be introduced 
into Antarctica.


0
16. Revise Sec.  670.37 to read as follows:


Sec.  670.37  Content of permit application.

    Applications for the introduction of non-indigenous species into 
Antarctica must describe:
    (a) The species, numbers, and if appropriate, the age and sex, of 
the species to be introduced into Antarctica;
    (b) The need for the species;
    (c) What precautions the applicant will take to prevent escape or 
contact with native fauna and flora; and
    (d) How the species will be removed from Antarctica or destroyed 
after they have served their purpose.


0
17. Revise Sec.  670.38 to read as follows:


Sec.  670.38  Conditions of permits.

    All permits allowing the introduction of non-indigenous species 
will require that the species be kept under controlled conditions to 
prevent its escape or contact with native fauna and flora and that 
after serving its purpose the species shall be removed from Antarctica 
or be destroyed in manner that protects the natural system of 
Antarctica.


0
18. Add Sec.  670.39 to read as follows:


Sec.  670.39  Other introductions of non-indigenous species.

    (a) Reasonable precautions shall be taken to prevent the accidental 
introduction of microorganisms not present naturally in the Antarctic 
Treaty area.
    (b) Any species, including progeny, not native to the Antarctic 
Treaty area, that is introduced without a permit, shall be removed or 
disposed of, whenever feasible, unless the removal or disposal would 
result in a greater adverse environmental impact. Reasonable steps 
shall be taken to control the consequences of an introduction to avoid 
harm to native fauna or flora.

    Dated: May 18, 2021.
Suzanne H. Plimpton,
Reports Clearance Officer, National Sciee Foundation.
[FR Doc. 2021-10807 Filed 5-24-21; 8:45 am]
BILLING CODE 7555-01-P