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[Federal Register Volume 63, Number 72 (Wednesday, April 15, 1998)]
[Rules and Regulations]
[Pages 18323-18326]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-10006]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 8

[FRL-5994-2]

Extension of Effective Date of Environmental Impact Assessment of 
Nongovernmental Activities in Antarctica

AGENCY: Environmental Protection Agency (EPA).

[[Page 18324]]

ACTION: Direct amendment to interim final rule.

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SUMMARY: On April 30, 1997, the Environmental Protection Agency (EPA) 
promulgated a regulation on environmental impact assessment of 
nongovernmental activities in Antarctica under Public Law 104-227, the 
Antarctic Science, Tourism, and Conservation Act of 1996. The April 30, 
1997, Interim Final Rule applies only to nongovernmental activities 
that may occur through the 1998-99 austral summer, to be replaced by a 
final rule. The EPA had planned to promulgate the final rule prior to 
October 2, 1998. However, representatives from the affected industry 
and environmental nongovernmental organizations (NGOs) have requested 
that EPA delay promulgation of the final rule for at least one year so 
that more experience with the Interim Final Rule can be considered in 
developing the final rule. After consultation with other Federal 
agencies which are involved with nongovernmental activities in 
Antarctica, EPA has determined that this request is reasonable and that 
additional time to develop the final rule will be beneficial. In order 
to delay promulgation of the final rule, EPA must amend the Interim 
Final Rule to extend its applicability through the 2000-2001 austral 
summer. Accordingly, EPA is promulgating this amendment to the Interim 
Final Rule as a direct amendment to interim final rule without prior 
proposal, because EPA views this as a noncontroversial action and 
anticipates no adverse comments.

DATES: Effective date: July 14, 1998 unless relevant adverse comments 
are received by June 15, 1998. If the effective date is delayed, timely 
notice will be published in the Federal Register.

ADDRESSES: Comments must be addressed to Mr. Joseph Montgomery or Ms. 
Katherine Biggs, Office of Federal Activities (2252A), U.S. 
Environmental Protection Agency, 401 M Street, S.W., Washington, D.C. 
20460.

FOR FURTHER INFORMATION CONTACT: Mr. Joseph Montgomery or Ms. Katherine 
Biggs, Office of Federal Activities (2252A), U.S. Environmental 
Protection Agency, 401 M Street, S.W., Washington, D.C. 20460; 
telephone: (202) 564-7157 or (202) 564-7144, respectively.

SUPPLEMENTARY INFORMATION: The EPA is also proposing an identical 
amendment and soliciting comment on it in the proposed rules section of 
today's Federal Register. The accompanying notice of proposed 
rulemaking serves as the basis of a subsequent final rule if the time 
extension amendment in the direct amendment to interim final rule 
receives relevant adverse comment and the direct amendment to interim 
final rule does not take effect as described below. If relevant adverse 
comments are received on the direct amendment to interim final rule, 
then EPA will withdraw this direct amendment to interim final rule 
prior to its effective date, consider the comments received on it as 
comments on the identical amendment in the proposed rules section, and 
address these comments during this subsequent final rulemaking.
    This direct amendment to interim final rule will become effective 
without further notice ninety (90) days from the date of today's 
Federal Register publication unless the EPA receives relevant adverse 
comment within sixty (60) days from the date of today's publication. 
For instructions on commenting to EPA, please see the ADDRESSES section 
and the ADDRESSES section of the corresponding proposed rule in the 
proposed rules section of today's Federal Register.
    For additional information, see the proposed rule published in the 
proposed rules section of this Federal Register. For information on the 
direct amendment to interim final rulemaking process and associated 
proposed rulemaking, see the SUMMARY section of this document.

I. Executive Order Clearance

    Under Executive Order 12866, (58 FR 51,735 (October 4, 1993)) the 
EPA must determine whether the regulatory action is ``significant'' and 
therefore subject to review by the Office of Management and Budget 
(OMB) and the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, EPA determined that 
the Interim Final Rule (62 FR 83, 23544 (April 30, 1997)) was a 
``significant regulatory action.'' Although none of the first three 
criteria apply, the Interim Final Rule raised novel legal or policy 
issues arising out of legal mandates under P.L. 104-227, the Antarctic 
Science, Tourism, and Conservation Act of 1996 and the Protocol on 
Environmental Protection to the Antarctic Treaty of 1959. Accordingly, 
the Interim Final Rule was submitted to OMB for review. Changes were 
made in response to OMB recommendations. The EPA has determined, 
however, that this action to amend the effective date of the Interim 
Final Rule is not a ``significant regulatory action'' because the legal 
and policies issues raised are no longer novel and were considered 
previously by OMB and because the first three criteria still do not 
apply. Accordingly, this action was not submitted to OMB for review.

II. Regulatory Flexibility Act

    The EPA determined that the Interim Final Rule issued April 30, 
1997, was not subject to the Regulatory Flexibility Act (RFA), which 
generally requires an agency to prepare a regulatory flexibility 
analysis for any proposed and final rule, unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. By its terms, the RFA applies 
only to rules for which the Agency is required to conduct notice-and-
comment rulemaking under the Administrative Procedure Act (APA) or any 
other statute. The Interim Final Rule was not subject to the RFA 
because EPA promulgated the rule invoking the ``good cause'' exemption 
provided in section 553(b) of the APA, 5 U.S.C. 553(b)(B), which 
removed the rule from the APA notice and comment requirements.
    Today's regulation, although it does no more than extend the 
effective date of the Interim Final Rule, is not exempt from APA notice 
and comment requirements, and is, therefore, subject to the 
requirements of the Regulatory Flexibility Act. The Agency has 
carefully assessed the impact of this regulation on small entities, and 
has determined that it is appropriate to certify that it will not have 
a significant economic impact on a substantial number of small 
entities.
    This determination is based on several factors. First, the total 
number of entities subject to the rule is small, probably no more than 
10. However, the overwhelming majority of the affected entities will be 
small. Nevertheless, the

[[Page 18325]]

impact of the rule will be low because assessments are already done 
pursuant to the current rule. Further, because the Interim Final Rule, 
as extended today, only requires assessment of environmental impacts, 
it will not cause any revenue reductions. The only economic effects of 
the rule on small businesses will be limited primarily to the cost of 
preparing an assessment. As explained further below in the discussion 
of the Paperwork Reduction Act, these costs should have been relatively 
minor even for the first year's submission, which all operators 
completed. Further, EPA anticipates few, if any, new operators will 
enter the field, and that for existing operators submissions in 
succeeding years will be able to re-use or modify substantial portions 
of the first year's documentation, further reducing costs.
    In addition, EPA has ensured the impact to small entities is 
minimized by drafting the Interim Final Rule such that the requirements 
it imposes 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. Finally, EPA has included a number of 
provisions, e.g., incorporation of information and consolidation of 
documentation, in the Interim Final Rule which should minimize the cost 
of such an analysis.

III. Unfunded Mandates Reform Act and Executive Order 12875

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L. 
104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on state, local, and tribal 
governments and the private sector. The UMRA did not apply to the 
Interim Final Rule because it was necessary for the ratification and 
implementation of international treaty obligations. The Interim Final 
Rule was not subject to the requirements of sections 202 and 205 of the 
UMRA. In any event, EPA determined that the Interim Final Rule did not 
contain a Federal mandate that may result in annual expenditures of 
$100 million or more for state, local, and tribal governments, in the 
aggregate, or for the private sector. The EPA also determined that the 
Interim Final Rule contained no regulatory requirements that might 
significantly or uniquely affect small governments under section 203 of 
the UMRA. This action is merely an extension of the effective date of 
the Interim Final Rule and imposes no burdens that may result in annual 
expenditures of $100 million or more. The rule, as extended, also is 
not expected to impact small governments significantly or uniquely. 
Accordingly, the requirements of UMRA do not apply.
    Executive Order 12875, Enhancing Intergovernmental Partnerships, 
likewise requires EPA to address certain effects on state, local, and 
tribal governments, but does not apply to the private sector. Since 
this regulation will affect only the private sector, and not any local, 
state, or tribal governments, the Executive Order does not apply.

IV. Paperwork Reduction Act

    The information collection requirements in the Interim Final Rule 
were submitted for approval to the OMB under the Paperwork Reduction 
Act, 44 U.S.C. 3501 et seq. Under Section 1320.13 of this Act, EPA 
received emergency approval, and a six month extension of this 
approval, from OMB for the Interim Final Rule. The OMB's approval 
expires in August 1998. Information Collection Request (ICR) Supporting 
Statements were prepared by EPA for the emergency approval of the ICR 
for the Interim Final Rule (ICR No. 1808.01) and the extension of this 
approval, and copies may be obtained from Ms. Sandy Farmer, Regulatory 
Information Division (2136), U.S. Environmental Protection Agency, 401 
M Street, S.W., Washington, D.C. 20460; telephone: (202) 260-2740.
    The emergency request for ICR approval along with the Interim Final 
Rule were necessary so that implementing regulations would be in place 
contemporaneously with the United States' ratification of the Protocol 
and in order to implement its obligations under the Protocol as soon as 
the Protocol entered into force. The Interim Final Rule provides 
nongovernmental operators with the specific environmental documentation 
requirements they must meet in order to comply with the Protocol.
    Nongovernmental operators, including tour operators, conducting 
expeditions to Antarctica are required to submit environmental 
documentation to EPA that evaluates the potential environmental impact 
of their proposed activities. If EPA has no comments, or if the 
documentation is satisfactorily revised in response to EPA's comments, 
and the operator does not receive a notice from EPA that the 
environmental documentation does not meet the requirements of Article 8 
and Annex I of the Protocol and the provisions of the interim final 
regulations, the operator will have no further obligations pursuant to 
the applicable requirements of the interim final regulations provided 
that any appropriate measures, which may include monitoring, are put in 
place to assess and verify the impact of the activity.
    The type of environmental document required depends upon the nature 
and intensity of the environmental impacts that could result from the 
activity under consideration. The Interim Final Rule provides for 
incorporation of material into an environmental document by referring 
to it in the document when the effect will be to reduce paperwork. 
Further, an operator may include more than one proposed expedition 
within one environmental document and one environmental document may 
also be used to address expeditions being carried out by more than one 
operator further reducing burden. In addition, EPA anticipates that 
operators will likely use the environmental documents submitted for 
their 1997-1998 expeditions, with appropriate revisions, for submittal 
in subsequent years under the Interim Final Rule.
    This action is merely an extension of the effective date of the 
Interim Final Rule, and is being taken in part in response to 
Antarctica tour operators. The EPA is preparing the ICR Supporting 
Statement for the Interim Final Rule taking into account the experience 
of the Federal agencies and the nongovernmental operators, including 
tour operators, subject to the Interim Final Rule during the 1997-1998 
austral season covered by OMB's emergency ICR approval. A Federal 
Register Notice will be published informing the public of the 
availability of the Supporting Statement for review and comment. 
Following the public comment period, EPA will address any relevant 
comments and then request OMB's approval of the ICR for the Interim 
Final Rule prior to the information collection schedule for the 1998-
1999 austral season. For the limited time the Interim Final Rule will 
be in effect, the EPA anticipates that operators will, as they did for 
the 1997-1998 austral season, make one submittal per year for all of 
their expeditions for that year. No capital costs or operational and 
maintenance costs are anticipated to be incurred as a result of the ICR 
for the Interim Final Rule. The following estimates were provided in 
the Interim Final Rule promulgated on April 30, 1997 (62 FR 83, 23538 
(April 30, 1997)).
    Frequency of Reporting: Once per year.
    Affected Public: Businesses, other nongovernmental entities 
including for profit entities, and not for profit institutions.
    Number of Respondents: 8.
    Estimated Average Time Per Respondent: 120 Hours.

[[Page 18326]]

    Total Annual Burden Hours: 960.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to: review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.

V. National Technology Transfer and Advancement Act

    Under the National Technology Transfer and Advancement Act, 15 
U.S.C. 272 note, EPA must use voluntary consensus standards to carry 
out policy objectives or activities unless it would be impractical to 
do so. In this case, such standards, applicable to this regulation, do 
not exist. Accordingly, the use of such standards is not required.

VI. Submission to Congress and the Comptroller General

    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 direct 
amendment to interim final 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 direct 
amendment to interim final rule in the Federal Register. This direct 
final rule is not a ``major rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 8

    Environmental protection, Antarctica, Enforcement, Environmental 
documentation, Environmental impact assessment, Penalties, Prohibited 
acts.

    Dated: April 2, 1998.
Steven A. Herman,
Assistant Administrator, Office of Enforcement and Compliance 
Assurance.

    Therefore, for the reasons set out in the preamble, title 40 
chapter 1 of the Code of Federal Regulations is amended as follows:

PART 8--ENVIRONMENTAL IMPACT ASSESSMENT OF NONGOVERNMENTAL 
ACTIVITIES IN ANTARCTICA

    1. The authority citation for part 8 continues to read as follows:

    Authority: 16 U.S.C. 2401 et seq., as amended, 16 U.S.C. 2403a.

    2. Section 8.2 is amended by revising paragraph (d) to read as 
follows:

Sec. 8.2  Applicability and effect.

 * * * * *
    (d) This part is effective on April 30, 1997. This part will expire 
upon the earlier of the end of the 2000-2001 austral summer season or 
upon issuance of a final regulation.
    3. Section 8.8 is amended by revising paragraphs (b)(1) and (b)(2) 
to read as follows:

Sec. 8.8  Comprehensive environmental evaluation.

* * * * *
    (b) Submission of Draft CEE to the EPA and Circulation to Other 
Parties. (1) For the 1998-1999, 1999-2000, and 2000-2001 austral 
seasons, any operator who plans a nongovernmental expedition which 
would require a CEE must submit a draft of the CEE by December 1, 1997, 
December 1, 1998, and December 1, 1999, respectively. Within fifteen 
(15) days of receipt of the draft CEE, EPA will: send it to the 
Department of State which will circulate it to all Parties to the 
Protocol and forward it to the Committee for Environmental Protection 
established by the Protocol, and publish notice of receipt of the CEE 
and request for comments on the CEE in the Federal Register, and will 
provide copies to any person upon request. The EPA will accept public 
comments on the CEE for a period of ninety (90) days following notice 
in the Federal Register. The EPA, in consultation with other interested 
federal agencies, will evaluate the CEE to determine if the CEE meets 
the requirements under Article 8 and Annex I to the Protocol and the 
provisions of this part and will transmit its comments to the operator 
within 120 days following publication in the Federal Register of the 
notice of availability of the CEE.
    (2) The operator shall send a final CEE to EPA at least seventy-
five (75) days before commencement of the proposed activity in the 
Antarctic Treaty area. The CEE must include (or summarize) any comments 
on the draft CEE received from EPA, the public, and the Parties, 
including comments offered at the XXII Antarctic Treaty Consultative 
Meeting in 1998, the XXIII Antarctic Treaty Consultative Meeting in 
1999, and the XXIV Antarctic Treaty Consultative Meeting in 2000 for 
CEEs submitted for the 1998-1999, 1999-2000, and 2000-2001 austral 
seasons, respectively. 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.
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[FR Doc. 98-10006 Filed 4-14-98; 8:45 am]
BILLING CODE 6560-50-P
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