II

103D CONGRESS

1ST SESSION S. 1427

To provide the necessary authority to manage the activities in Antarctica

of United States scientific research expeditions and United States tourists, and to regulate the taking of Antarctic marine living resources,

and for other purposes.

IN THE SENATE OF THE UNITED STATES

AUGUST 6 (legislative day, JUNE 30), 1993

Mr. KERRY introduced the following bill; which was read twice and referred

to the Committee on Commerce, Science, and Transportation

A BILL

To provide the necessary authority to manage the activities

in Antarctica of United States scientific research expeditions and United States tourists, and to regulate the

taking of Antarctic marine living resources, and for other

purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Antarctic Scientific

5 Research, Tourism, and Marine Resources Act of 1993’’.

6 SEC. 2. FINDINGS.

7 The Congress finds the following:
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1 (1) For well over a quarter of a century, sci2 entific investigation has been the main activity of

3 the Federal Government and United States nationals

4 in Antarctica.

5 (2) More recently Antarctica has become of in6 creasing interest to American tourists.

7 (3) As the lead civilian agency in Antarctica,

8 the National Science Foundation has long had the

9 responsibility of ensuring that United States sci10 entific expeditions and tourism, and their supporting

11 logistics operations, are conducted with an eye to

12 preserving the special values of the Antarctic region.

13 (4) The National Science Foundation, in close

14 cooperation with other scientific agencies, has grant15 ed many scientific and other permits under the Ant16 arctic Conservation Act of 1978, which implemented

17 the Agreed Measures for the Conservation of Ant18 arctic Fauna and Flora adopted under the auspices

19 of the Antarctic Treaty.

20 (5) The Antarctic Marine Living Resources

21 Convention Act of 1984 and the Antarctic Protec22 tion Act of 1990 reinforce this stewardship objective

23 by assigning the Under Secretary of Commerce for

24 Oceans and Atmosphere the duty to conserve the liv-
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1 ing and nonliving marine resources of the Antarctic

2 region.

3 (6) The recently concluded Protocol on Envi4 ronmental Protection to the Antarctic Treaty, which

5 supplants the Agreed Measures on Fauna and Flora,

6 is the latest step in safeguarding Antarctica as a

7 natural reserve for science.

8 (7) Effective implementation of the Protocol for

9 the United States will be best and most efficiently

10 accomplished by keeping the National Science Foun11 dation in its lead agency role in managing scientific

12 activities in Antarctica, and by assigning other roles

13 to the Department of Commerce such as tourism

14 and resource regulation.

15 SEC. 3. DEFINITIONS.

16 In this Act, the following definitions apply:

17 (1) The term ‘‘Antarctica’’ means the area

18 south of 60 degrees south latitude.

19 (2) The term ‘‘Antarctic Treaty’’ means the

20 Antarctic Treaty signed in Washington, District of

21 Columbia, on December 1, 1959.

22 (3) The term ‘‘Director’’ means the Director of

23 the National Science Foundation.
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1 (4) The term ’’minor or transitory impact’’

2 means a minor or transitory impact as described in

3 Article 8 of the Protocol.

4 (5) The term ‘‘Protocol’’ means the Protocol on

5 Environmental Protection to the Antarctic Treaty,

6 done at Madrid on October 4, 1991, and all the

7 annexes thereto.

8 (6) The term ‘‘Secretary’’ means the Secretary

9 of Commerce.

10 (7) The term ‘‘vessel of the United States’’ has

11 the meaning provided in section 2101(46) of title

12 46, United States Code.

13 (8) The term ‘‘vessel subject to the jurisdiction

14 of the United States’’ means a foreign vessel that—

15 (A) is used to provide logistic support to

16 United States facilities in Antarctica; or

17 (B) transports passengers to, from, or in

18 Antarctica, if—

19 (i) there is an agreement between the

20 United States and the flag nation of the

21 foreign vessel regarding such transpor22 tation;

23 (ii) the flag nation of the foreign ves24 sel is a party to the Protocol and has re25 ferred the matter to the United States; or
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1 (iii) the United States may exercise

2 jurisdiction over the vessel in accordance

3 with generally recognized principles of

4 international law.

5 SEC. 4. REPRESENTATIVE, ARBITRATORS, AND INSPEC6 TORS.

7 (a) REPRESENTATIVE TO COMMITTEE FOR ENVIRON8 MENTAL PROTECTION.—(1) The President shall appoint

9 an officer or employee of the United States as the United

10 States representative to the Committee for Environmental

11 Protection under the Protocol. Such officer or employee

12 shall have the technical qualifications required to serve in

13 such capacity.

14 (2) The person appointed under paragraph (1) shall

15 receive no additional compensation for serving as the

16 United States representative.

17 (b) ARBITRATORS.—(1) The Secretary of State shall

18 designate up to three arbitrators to serve on the Arbitral

19 Tribunal to be established under the Protocol.

20 (2) Each arbitrator shall be experienced in Antarctic

21 affairs, have a thorough knowledge of international law,

22 and have the highest reputation for fairness, competence,

23 and integrity.
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1 (c) INSPECTORS.—The Secretary of State shall des2 ignate persons to serve as inspectors under Article 14 of

3 the Protocol.

4 SEC. 5. UNLAWFUL ACTIVITIES.

5 It is unlawful for any person—

6 (1) to conduct an activity within Antarctica, in7 cluding tourism, scientific research, expeditions, and

8 logistical support to United States facilities and

9 bases, in a manner inconsistent with the Protocol;

10 (2) to violate a provision of this Act, a regula11 tion promulgated under this Act, or the terms of a

12 permit issued under this Act;

13 (3) to refuse to permit an authorized officer or

14 employee of the United States to board a vessel of

15 the United States or a vessel subject to the jurisdic16 tion of the United States for the purpose of conduct17 ing any search or inspection in connection with the

18 enforcement of this Act;

19 (4) to assault, resist, oppose, impede, intimi20 date, or interfere with an authorized officer or em21 ployee of the United States in the conduct of any

22 search or inspection described in paragraph (3);

23 (5) to resist a lawful arrest or detention for an

24 act prohibited by this section;
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1 (6) to interfere with, delay, or prevent, by any

2 means, the apprehension, arrest, or detention of an3 other person, knowing that such other person has

4 committed any act prohibited by this section; or

5 (7) to attempt to commit an act prohibited by

6 this section.

7 SEC. 6. PERMITS AND OTHER REGULATORY CONTROLS.

8 (a) ACTIVITIES REQUIRING PERMITS.—The following

9 activities shall not be conducted by any person in Antarc10 tica, except in accordance with a permit issued in accord11 ance with this section:

12 (1) The conduct or support by a person of a

13 tourism expedition or other nongovernmental expedi14 tion by vessel or aircraft to, from, or within Antarc15 tica.

16 (2) The operation of United States facilities

17 within Antarctica, including the construction or de18 commissioning of a United States base, building, or

19 airfield.

20 (3) An activity for which the Protocol requires

21 a permit.

22 (b) APPLICATIONS.—(1) Applications for permits

23 under this section shall be made in such manner and form,

24 and shall contain such information, as the Director with
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1 the concurrence of the Secretary shall prescribe by regula2 tion.

3 (2) The Director shall publish notice in the Federal

4 Register of each application for a permit under this sec5 tion. The notice shall invite the submission by interested

6 parties, within 30 days after the date of publication of the

7 notice, of written data, comments, or views with respect

8 to the application. Information received by the Director

9 as a part of an application shall be available to the public

10 as a matter of public record.

11 (c) ACTION ON CERTAIN PERMIT APPLICATIONS.—

12 (1) When the Director receives an application for a permit

13 under this section to undertake an action to which a law

14 administered by another Federal agency applies, the Di15 rector shall refer the application to such agency for review

16 and appropriate action.

17 (2) After receiving a copy of an application from the

18 Director under paragraph (1), the head of the Federal

19 agency concerned shall promptly determine and notify the

20 Director whether or not an action proposed in the applica21 tion would be prohibited by a law administered by such

22 agency or otherwise requires a permit or other authoriza23 tion under a law administered by such agency.

24 (3) If the head of such agency notifies the Director

25 that an action proposed in the application would be pro-
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1 hibited by a law administered by such agency, the Director

2 may not issue a permit under this section with respect

3 to the proposed action.

4 (4) If the head of such agency notifies the Director

5 that an action proposed in the application requires a per6 mit or other authorization under a law administered by

7 such agency, the Director may not issue a permit under

8 this section with respect to the proposed action unless the

9 other required permit or authorization is issued by such

10 agency and a copy thereof is submitted to the Director.

11 (d) ISSUANCE OF PERMITS.—(1) As soon as prac12 ticable after receiving an application for a permit under

13 this section, or, in the case of an application to which sub14 section (c) applies, as soon as practicable after the applica15 ble requirements of that subsection are complied with, the

16 Director shall issue, or deny the issuance of, the permit.

17 Within 10 days after the date of the issuance or denial,

18 the Director shall publish notice of the issuance or denial

19 in the Federal Register, including a description of any per20 mit terms and conditions.

21 (2) Subject to paragraph (3), a permit may not be

22 issued under this section for an activity unless—

23 (A) the application for the permit contains suf24 ficient information to allow the Director to make a

25 prior assessment of, and informed judgment about,
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1 the possible impacts of the proposed activity on Ant2 arctica, including cumulative impacts, and on the

3 value of Antarctica for the conduct of scientific

4 research;

5 (B) if required under section 7, an environ6 mental impact statement has been prepared, and cir7 culated by the Secretary of State in accordance with

8 the Protocol; and

9 (C) the proposed activity is consistent with this

10 Act and the Protocol.

11 (3) If the proposed activity is the expansion, con12 struction, or decommissioning of a United States base,

13 building, or air field, or the operation of a United States

14 base, building, or air field that was expanded or con15 structed after the date of enactment of this Act, the Direc16 tor may not issue a permit for that activity unless the Di17 rector determines that—

18 (A) the requirements of paragraph (2) are com19 plied with;

20 (B) there is a substantial national need for the

21 activity; and

22 (C) there is no practicable alternative that will

23 have a less adverse impact on the environment.

24 (4) If the proposed activity is a tourism activity, an

25 activity described in paragraph (3), or an introduction or
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1 taking of an Antarctic marine living resource to which the

2 Antarctic Marine Living Resources Convention Act of

3 1984 applies, or if the Director determines that the activ4 ity will have more than a minor or transitory impact, the

5 Director may issue a permit only if the Secretary concurs.

6 (5) Activities regulated by an annex to the Protocol

7 and which are authorized under a permit issued by the

8 Director are considered to be in compliance with Article

9 3 of the Protocol.

10 (e) TERMS AND CONDITIONS OF PERMITS.—Each

11 permit issued under this section shall specify the period

12 during which the permit is valid and such other terms and

13 conditions as the Director (or, if applicable, the head of

14 any Federal agency described in subsection (c)) considers

15 appropriate to ensure that an action authorized under the

16 permit is carried out in a manner consistent with the Pro17 tocol, this Act, and the regulations promulgated under this

18 Act.

19 (f) JUDICIAL REVIEW.—(1) Any applicant for a per20 mit may obtain judicial review pursuant to chapter 7 of

21 title 5, United States Code, of—

22 (A) the terms and conditions of a permit issued

23 by the Director under this section; or

24 (B) refusal of the Director to issue a permit.
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1 Review under this subsection may be initiated by fil2 ing a petition for review in the United States district court

3 for the district wherein the applicant for a permit resides

4 or that is the principal place of business of the applicant,

5 or in the United States District Court for the District of

6 Columbia, within 60 days after the date on which the per7 mit is issued or denied.

8 (g) MODIFICATION, SUSPENSION, AND REVOCA9 TION.—(1) The Director may modify, suspend, or revoke,

10 in whole or in part, a permit issued under this section—

11 (A) if there is a change in conditions which

12 makes the permit inconsistent with this Act or the

13 provisions of the Protocol, including Article 3 of the

14 Protocol;

15 (B) in order to make the permit consistent with

16 a change made after the date of issuance of the per17 mit to a regulation promulgated under section 9; or

18 (C) in a case in which there has been a viola19 tion of a term or condition of the permit, or of a

20 regulation promulgated under this Act or a provision

21 of this Act relating to that permit.

22 (2) If the Director proposes a modification, suspen23 sion, or revocation of a permit under this subsection, the

24 permittee shall be afforded opportunity, after due notice,

25 for a hearing by the Director with respect to the proposed
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1 modification, suspension, or revocation. If a hearing is re2 quested, the action proposed by the Director shall not take

3 effect before a decision is issued after the hearing, unless

4 the proposed action is taken by the Director to protect

5 the Antarctic environment, and its dependent and associ6 ated ecosystems, or to prevent the loss of human life.

7 (3) The Director shall publish notice of the modifica8 tion, suspension, or revocation of a permit in the Federal

9 Register within 10 days after the date of the Director’s

10 decision, including the reasons for the action.

11 (h) PERMIT FEES.—The Director shall establish and

12 charge fees for processing applications for permits under

13 this section. The amount of the fees shall be commensu14 rate with the administrative costs incurred by the Director

15 in processing the application, but shall not include the

16 costs to the Director of preparing an environmental im17 pact statement that is required under section 7.

18 (i) OTHER REGULATORY CONTROLS.—(1) The Ad19 ministrator of the Environmental Protection Agency has

20 overall responsibility for the implementation of the provi21 sions of Annex III of the Protocol. In carrying out the

22 responsibility, the Administrator shall—

23 (A) prohibit incineration in Antarctica; and

24 (B) require that discharges into the sea in Ant25 arctica after January 1, 1995, shall meet secondary
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1 treatment standards that are the same as those ap2 plicable to the navigable waters of the United States.

3 (2) The Federal Facilities Compliance Act of 1992

4 (Public Law 102–386; 106 Stat. 1505), including amend5 ments by that Act to other provisions of law, and the

6 Clean Air Act (42 U.S.C. 7401 et seq.) apply in Antarc7 tica. Nothing in the preceding sentence shall be construed

8 to affect the applicability of any other law in Antarctica.

9 SEC. 7. ENVIRONMENTAL ASSESSMENT OF ACTIVITIES

10 WITHIN ANTARCTICA.

11 (a) FEDERAL ACTIVITIES.—(1) The head of each

12 Federal agency which plans to conduct an activity in Ant13 arctica (including the conduct of scientific research and

14 the provision of logistical support to United States facili15 ties), or plans to take action on an application for a permit

16 to conduct such an activity, shall review the activity in

17 accordance with Annex I of the Protocol. The agency head

18 shall consult with the Director in conducting the review.

19 If the agency head determines that the proposed activity

20 will have less than a minor or transitory impact, and the

21 Director does not disagree, the activity may proceed if the

22 agency monitors the activity to verify that less than a

23 minor or transitory impact results from the activity.
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1 (2) If the agency head determines that the proposed

2 activity will have at least a minor or transitory impact,

3 the agency shall prepare an environmental assessment.

4 (3) If the agency head determines, through the prepa5 ration of an environmental assessment or otherwise, that

6 a proposed activity will have more than a minor or transi7 tory impact, the agency shall prepare an environmental

8 impact statement on the proposed activity.

9 (4) If the Secretary, the Director, or the Adminis10 trator of the Environmental Protection Agency disagrees

11 with an agency determination under this section that a

12 proposed activity will have a minor or transitory impact,

13 or less, the matter shall be referred to the President for

14 review and no decision shall be taken to proceed with or

15 permit the activity until the President takes action. On

16 the basis of the review, the President may require the

17 agency head to prepare an environmental assessment or

18 environmental impact statement on the proposed activity.

19 (b) TOURISM AND OTHER NONGOVERNMENTAL AC20 TIVITIES.—The Secretary, in consultation with the Direc21 tor, shall issue regulations establishing procedures for the

22 environmental assessment of tourism and other non23 governmental activities conducted by any person within

24 Antarctica, consistent with the applicable law and the

25 Protocol.
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1 (c) REVIEW.—No decision shall be taken to proceed

2 with or permit an activity for which an environmental im3 pact statement is prepared under this section until—

4 (1) the draft statement has been made publicly

5 available for at least 90 days and circulated by the

6 Secretary of State in accordance with Article 3 of

7 Annex I to the Protocol;

8 (2) there has been an opportunity for consider9 ation of the draft statement at a meeting of the Ant10 arctic Treaty Consultative Parties, except that no

11 decision to proceed with a proposed activity shall be

12 delayed through the operation of this paragraph for

13 more than 15 months from the circulation of the

14 draft statement;

15 (3) a final statement has been made publicly

16 available at least 60 days before the commencement

17 of the proposed activity; and

18 (4) monitoring procedures have been established

19 to assess and verify the impacts of the activity.

20 (d) EXCEPTION.—This section shall not apply in

21 cases of extreme emergency relating to the prevention of

22 the loss of human life or involving the safety of a ship

23 or aircraft.
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1 SEC. 8. MONITORING, INSPECTIONS, PLANS, REPORTS.

2 (a) MONITORING.—The Director, in consultation

3 with the Secretary and the heads of other appropriate

4 Federal agencies, shall develop and implement a plan for

5 the monitoring of activities within Antarctica, including

6 the operation of United States facilities, scientific re7 search, and expeditions, that have more than a minor or

8 transitory impact.

9 (b) INSPECTIONS.—The Secretary of State may agree

10 on behalf of the United States to a system of observation

11 and inspection and to interim arrangements pending the

12 establishment of such a system pursuant to Article 14 of

13 the Protocol.

14 (c) LAND-BASED CONTINGENCY PLANS.—The Direc15 tor, in consultation with the heads of appropriate Federal

16 agencies, shall develop requirements for contingency plans

17 for response to incidents caused by persons within Antarc18 tica with potential adverse effects as described in Article

19 15 of the Protocol.

20 (d) REPORTS.—The Secretary of State shall—

21 (1) circulate to all parties to the Antarctic

22 Treaty, after notice and public comment, all inspec23 tion and compliance reports and all actions taken to

24 ensure compliance with the Protocol, including no25 tice of activities undertaken in cases of emergency;

26 and
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1 (2) bring promptly to the attention of other

2 parties to the Antarctic Treaty all known incidents

3 of noncompliance with the Protocol by the nationals

4 of those parties.

5 SEC. 9. REGULATIONS.

6 (a) IN GENERAL.—The Director, the Secretary, and

7 the Secretary of the department in which the Coast Guard

8 is operating, after consultation with appropriate officials,

9 shall promulgate such regulations as are appropriate to

10 implement this Act, taking into account the Antarctic

11 Treaty, any measures adopted thereunder, the Protocol,

12 and any awards issued thereunder by a competent

13 tribunal.

14 (b) SCHEDULE FOR REGULATIONS.—The regulations

15 required by this section shall be promulgated within two

16 years after the date of enactment of this Act.

17 SEC. 10. CIVIL PENALTIES.

18 (a) ASSESSMENT OF PENALTIES.—(1) Any person

19 who is found by the Director or the Secretary, after notice

20 and opportunity for a hearing in accordance with sub21 section (b), to have committed any act prohibited by sec22 tion 5 shall be liable to the United States for a civil pen23 alty. The amount of the civil penalty shall not exceed

24 $25,000 for each violation. Each day of a continuing viola25 tion shall constitute a separate offense. The amount of any
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1 civil penalty shall be assessed by the Director or the Sec2 retary by written notice. In determining the amount of the

3 penalty, the Director or the Secretary shall take into ac4 count the nature, circumstances, extent, and gravity of the

5 prohibited acts committed, and, with respect to the viola6 tor, the degree of culpability, any history of prior offenses,

7 ability to pay, and such other matters as justice may re8 quire, to the extent that the information is reasonably

9 available to the Director or the Secretary.

10 (2) The Director or the Secretary may compromise,

11 modify, or remit, with or without conditions, any civil pen12 alty which may be imposed under this section.

13 (b) HEARINGS.—Hearings for the assessment of civil

14 penalties under subsection (a) shall be conducted in ac15 cordance with section 554 of title 5, United States Code.

16 For the purposes of conducting any such hearing, the Di17 rector or the Secretary may issue subpoenas for the at18 tendance and testimony of witnesses and the production

19 of relevant papers, books, and documents, and may admin20 ister oaths. Witnesses summoned shall be paid the same

21 fees and mileage that are paid to witnesses in the courts

22 of the United States. In case of contempt or refusal to

23 obey a subpoena served upon any person pursuant to this

24 subsection, the district court of the United States for any

25 district in which the person is found, resides, or transacts
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1 business, upon application by the United States and after

2 notice to the person, shall have jurisdiction to issue an

3 order requiring the person to appear before the Director

4 or the Secretary and either give testimony or produce doc5 uments or both, and any failure to obey such order of the

6 court may be punished by the court as a contempt thereof.

7 (c) REVIEW OF CIVIL PENALTY.—Any person against

8 whom a civil penalty is assessed under subsection (a) may

9 obtain review thereof in the appropriate district court of

10 the United States by filing a complaint in the court within

11 30 days after the date of the order and by simultaneously

12 sending a copy of the complaint by certified mail to the

13 Director or the Secretary, the Attorney General, and the

14 appropriate United States Attorney. The Director or the

15 Secretary shall promptly file in the court a certified copy

16 of the record upon which the violation was found or the

17 penalty imposed, as provided in section 2112 of title 28,

18 United States Code. The court shall set aside the findings

19 and order of the Director or the Secretary if the findings

20 and order are found to be unsupported by substantial evi21 dence, as provided in section 706(2)(E) of title 5, United

22 States Code.

23 (d) RECOVERY OF CIVIL PENALTIES.—The Attorney

24 General may seek to recover in any appropriate district

25 court of the United States (1) any civil penalty imposed
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1 under this section that has become a final and

2 unappealable order and has been referred to the Attorney

3 General by the Director or the Secretary, or (2) any final

4 judgment rendered under this section in favor of the

5 United States by an appropriate court. In such action, the

6 validity and appropriateness of the final order imposing

7 the civil penalty shall not be subject to review.

8 (e) PENALTIES UNDER OTHER LAWS.—The assess9 ment of a civil penalty under subsection (a) for any act

10 shall not be considered to preclude the assessment of a

11 civil penalty for the act under any other law.

12 (f) CONSULTATION.—The Director and the Secretary

13 shall consult on an ongoing basis to ensure that the func14 tions authorized under this section are carried out effec15 tively and fairly.

16 SEC. 11. CRIMINAL OFFENSES.

17 (a) OFFENSES.—A person is guilty of an offense if

18 that person knowingly commits an act prohibited by

19 section 5.

20 (b) PUNISHMENT.—An offense under subsection (a)

21 is punishable by imprisonment for not more than one year,

22 or a fine under title 18, United States Code, or both.

23 (c) OFFENSES UNDER OTHER LAWS.—A conviction

24 under subsection (a) for any act shall not be considered

25 to preclude a conviction for the act under any other law.
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1 SEC. 12. ENFORCEMENT.

2 (a) RESPONSIBILITY.—The provisions of this Act

3 shall be enforced by the Director, the Secretary, and the

4 Secretary of the department in which the Coast Guard is

5 operating. The Director and the Secretaries may utilize

6 by agreement, on a reimbursable basis or otherwise, the

7 personnel, services, and facilities (including aircraft and

8 vessels) of any other department or agency of the United

9 States in the performance of such duties.

10 (b) POWERS OF AUTHORIZED OFFICERS AND EM11 PLOYEES.—An officer or employee of the United States

12 who is authorized, by the Director, the Secretary, the Sec13 retary of the department in which the Coast Guard is op14 erating, or the head of a department or agency of the

15 United States which has entered into an agreement with

16 the Director or either Secretary under subsection (a), to

17 enforce the provisions of this Act, a regulation promul18 gated under this Act, or a permit issued under this Act

19 may, in enforcing such provision—

20 (1) secure, execute, and serve an order, war21 rant, subpoena, or other process, which is issued

22 under the authority of the United States or by a

23 court of competent jurisdiction;

24 (2) search without warrant a person, place, ve25 hicle, or aircraft subject to the jurisdiction of the

26 United States if there are reasonable grounds to be-
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1 lieve that a person has committed an act prohibited

2 by section 5;

3 (3) with or without a warrant, board and

4 search or inspect a vessel of the United States or

5 vessel subject to the jurisdiction of the United

6 States—

7 (4) seize without warrant—

8 (A) an evidentiary item if there are reason9 able grounds to believe that a person has com10 mitted an act prohibited by section 5;

11 (B) any resource with respect to which

12 such an act is committed;

13 (C) a vessel of the United States (includ14 ing its gear, furniture, appurtenances, stores,

15 and cargo), a vessel subject to the jurisdiction

16 of the United States (including its gear, fur17 niture, appurtenances, stores, and cargo), a ve18 hicle, aircraft, or other means of transportation

19 that is subject to the jurisdiction of the United

20 States, used in connection with such an act;

21 and

22 (D) a gun, trap, net, or equipment used in

23 connection with such an act;
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1 (5) Offer and pay rewards for information

2 which may lead to the apprehension of persons vio3 lating such provisions;

4 (6) make inquiries, and administer to or take

5 from, a person an oath, affirmation, or affidavit,

6 concerning a matter which is related to the enforce7 ment of such provisions;

8 (7) in coordination with the Secretary of the

9 Treasury, detain for inspection and inspect a pack10 age, crate, or other container, including its contents

11 and all accompanying documents, upon importation

12 into or exportation from the United States;

13 (8) make an arrest with or without a warrant

14 with respect to any act prohibited by section 5, if

15 such officer or employee has reasonable grounds to

16 believe that the person to be arrested is committing

17 such act in his or her presence or view or has com18 mitted such act;

19 (9) exercise enforcement powers conferred on

20 the officer or employee under a system of observa21 tion and inspection, or interim arrangements pend22 ing the establishment of such a system, which the

23 President has agreed to on behalf of the United

24 States; and
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1 (10) exercise any other authority which the offi2 cer or employee is permitted by law to exercise.

3 (c) SEIZURE.—A property or item seized pursuant to

4 subsection (b) shall be held by any officer or employee of

5 the United States who is authorized by the Director, the

6 Secretary, or the Secretary of the department in which

7 the Coast Guard is operating, pending the disposition of

8 civil or criminal proceedings concerning the violation relat9 ing to the property or item or the institution of an action

10 in rem for the forfeiture of such property or item. Such

11 authorized officer or employee may, upon the order of a

12 court of competent jurisdiction, either release the seized

13 property or item to the wild or destroy the property or

14 item if the cost of maintenance of the property or item

15 pending the disposition of the case is greater than the le16 gitimate market value of the property or item. The author17 ized officer or employee and all officers or employees act18 ing by or under his or her direction shall be indemnified

19 from any penalties or actions for damages for so releasing

20 or destroying the property or item, unless the actions of

21 the officer or employee are grossly negligent or constitute

22 willful misconduct. The authorized officer or employee

23 may, in lieu of holding such property or item, permit the

24 owner or consignee thereof to post a bond or other satis25 factory surety.
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1 (d) FORFEITURE.—(1) A vessel of the United States

2 (including its gear, furniture, appurtenances, stoves, and

3 cargo), or vessel, vehicle, or aircraft or other means of

4 transportation subject to the jurisdiction of the United

5 States, which is used in connection with an act prohibited

6 by section 5, and a gun, trap, net, and other equipment

7 used in connection with such act, shall be subject to for8 feiture to the United States.

9 (2) Upon the forfeiture to the United States of an

10 item described in paragraph (1), or upon the abandonment

11 or waiver of any claim to any such item, it shall be dis12 posed of by the Director, the Secretary, or the Secretary

13 of the department in which the Coast Guard is operating,

14 as the case may be, in such a manner, consistent with

15 the purposes of this Act, as may be prescribed by

16 regulation.

17 (e) APPLICATION OF LAWS.—All provisions of law re18 lating to the seizure, forfeiture, and condemnation of prop19 erty (including vessels) for violation of the customs laws,

20 the disposition of the property or the proceeds from the

21 sale thereof, and the remission or mitigation of the forfeit22 ure, shall apply to the seizures and forfeitures incurred,

23 or alleged to have been incurred, and the compromise of

24 claims, under the provisions of this Act, insofar as such

25 provisions of law are applicable and not inconsistent with
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1 the provisions of this Act; except that all powers, rights,

2 and duties conferred or imposed by the customs laws may,

3 for the purposes of this Act, also be exercised or performed

4 by the Director, the Secretary, or the Secretary of the de5 partment in which the Coast Guard is operating, or by

6 such officers or employees of the United States as the Di7 rector, the Secretary, or the Secretary of the department

8 in which the Coast Guard is operating may designate.

9 (f) EMERGENCY POWERS.—Notwithstanding any

10 other provision of this Act, the Director, the Secretary,

11 or the Secretary of the department in which the Coast

12 Guard is operating, upon receipt of evidence that an activ13 ity by a person is presenting, or is threatening to present,

14 an imminent and substantial endangerment to the envi15 ronment of Antarctica or to the health and safety of per16 sons residing therein, may commence a civil action on be17 half of the United States in the appropriate district court

18 of the United States to immediately restrain that person

19 causing the activity to stop the activity or to take such

20 other action as may be necessary.

21 (g) INSPECTION FEES.—The Director, the Secretary,

22 and the Secretary of the department in which the Coast

23 Guard is operating may charge reasonable fees for the ex24 penses of the United States incurred in carrying out in-
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1 spections and in transferring, boarding, handling, or stor2 ing evidentiary items seized or forfeited under this Act.

3 SEC. 13. IN REM LIABILITY; JURISDICTION OF COURTS.

4 (a) IN REM LIABILITY.—A vessel of the United

5 States, or a vessel subject to the jurisdiction of the United

6 States, that is operated in violation of the Protocol, this

7 Act, or the regulations promulgated under this Act is lia8 ble in rem for any civil penalty assessed under section 10

9 or any fine imposed under section 11, and may be pro10 ceeded against in any district court of the United States

11 having jurisdiction. The penalty or fine shall constitute a

12 lien on the vessel which may be recovered in an action

13 in rem in the district court of the United States having

14 jurisdiction.

15 (b) JURISDICTION OF COURTS.—The district courts

16 of the United States shall have jurisdiction over any case

17 or controversy arising under the provisions of this Act or

18 of any regulation or permit issued under this Act.

19 SEC. 14. CITIZEN SUITS.

20 (a) AUTHORITY TO BRING CIVIL ACTIONS.—Except

21 as provided in subsections (c) and (d), any person may

22 commence a civil action on that person’s own behalf—

23 (1) against any person (including the United

24 States and any other governmental instrumentality

25 or agency, to the extent permitted by the eleventh
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1 amendment to the Constitution) who is alleged to

2 have committed an act prohibited under section 5 of

3 this Act, section 306 of the Antarctic Marine Living

4 Resources Convention Act of 1984 (16 U.S.C.

5 2435), or section 4 of the Antarctic Protection Act

6 of 1990 (16 U.S.C. 2463); or

7 (2) against the Director, the Secretary, or any

8 other head of a Federal agency where there is al9 leged a failure of the Director, the Secretary, or

10 such other agency head to perform any act or duty

11 under this Act, the Antarctic Marine Living Re12 sources Convention Act of 1984, or the Antarctic

13 Protection Act of 1990, which is not discretionary

14 with the Director, the Secretary, or such other agen15 cy head.

16 (b) RELIEF.—The appropriate district court of the

17 United States shall have jurisdiction in actions brought

18 under subsection (a)(1) to enforce the prohibition con19 cerned, to order such action as may be necessary to correct

20 the violation, and to impose any civil penalty provided for

21 the violation. The appropriate district court shall have ju22 risdiction in actions brought under subsection (a)(2) to

23 order the Director, the Secretary, or the affected other

24 agency head to perform the act or duty concerned.
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1 (c) RULES APPLICABLE TO SUBSECTION (a)(1) AC2 TIONS.—(1) No action may be commenced under sub3 section (a)(1) before 60 days after the plaintiff has given

4 notice of the alleged violation to each of the following:

5 (A) The Director and the Secretary.

6 (B) Any alleged violator of the prohibition.

7 Notice under this paragraph shall be given in such manner

8 as the Director shall prescribe by regulation.

9 (2) No action may be commenced under subsection

10 (a)(1) if the Director or Secretary has commenced and

11 is diligently pursuing an action under this Act, the Ant12 arctic Marine Living Resources Convention Act of 1984,

13 or the Antarctic Protection Act of 1990, to require compli14 ance with the prohibition concerned.

15 (d) RULES APPLICABLE TO SUBSECTION (a)(2) AC16 TIONS.—No action may be commenced under subsection

17 (a)(2) before the 60th day following the date on which

18 the plaintiff gives notice to the Director, the Secretary,

19 or the affected other agency head that the plaintiff will

20 commence such action.

21 (e) COSTS.—The court, in issuing any final order in

22 any action commenced pursuant to this section, may

23 award costs of litigation (including reasonable attorney

24 and expert witness fees) to the prevailing or the substan25 tially prevailing party whenever the court determines such
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1 an award is appropriate. The court may, if a temporary

2 restraining order or preliminary injunction is sought, re3 quire the filing of a bond or equivalent security in accord4 ance with the Federal Rules of Civil Procedure.

5 (f) INTERVENTION.—In any action under this sec6 tion, the United States if not a party may intervene as

7 a matter of right.

8 (g) OTHER RIGHTS.—This section does not restrict

9 any right that any person may have under any statute or

10 common law to seek enforcement of any standard or limi11 tation or to seek any other relief.

12 SEC. 15. AMENDMENTS TO ANTARCTIC MARINE LIVING RE13 SOURCES CONVENTION ACT OF 1984.

14 (a) FINDINGS.—Section 302 of the Antarctic Marine

15 Living Resources Convention Act of 1984 (16 U.S.C.

16 2431) is amended by striking ‘‘and’’ at the end of para17 graph (5), by redesignating paragraph (6) as paragraph

18 (7), and by inserting immediately after paragraph (5) the

19 following new paragraph:

20 ‘‘(6) safeguards provided in the Protocol con21 cerning the taking of or harmful interference with

22 marine living resources provide important supple23 mentary protection; and’’.
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1 (b) DEFINITIONS.—(1) Section 303(2) of the Ant2 arctic Marine Living Resources Convention Act of 1984

3 (16 U.S.C. 2432(2)) is amended—

4 (A) by inserting ‘‘invertebrates, and plants,’’

5 immediately before ‘‘found south’’; and

6 (B) by inserting ‘‘, other than nonindigenous

7 animals and plants introduced from north of the

8 Convergence’’ immediately before the period at the

9 end.

10 (2) Section 303(5)(A) of the Antarctic Marine Living

11 Resources Convention Act of 1984 (16 U.S.C.

12 2432(5)(A)) is amended by inserting ‘‘, including any tak13 ing or harmful interference prohibited under Article 3 of

14 Annex II to the Protocol’’ immediately before the semi15 colon.

16 (3) Section 303 of the Antarctic Marine Living Re17 sources Convention Act of 1984 (16 U.S.C. 2432) is

18 amended—

19 (A) by redesignating paragraphs (9) through

20 (11) as paragraphs (10) through (12), respectively;

21 and

22 (B) by inserting immediately after paragraph

23 (8) the following new paragraph:

24 ‘‘(9) PROTOCOL.—The term ‘Protocol’ means

25 the Protocol on Environmental Protection to the
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1 Antarctic Treaty, done at Madrid on October 4,

2 1991, and all annexes thereto.’’.

3 (c) UNLAWFUL ACTIVITIES.—(1) Section 306(1) of

4 the Antarctic Marine Living Resources Convention Act of

5 1984 (16 U.S.C. 2435(1)) is amended by inserting ‘‘or

6 the Protocol,’’ immediately after ‘‘violation of the provi7 sions of the Convention’’.

8 (2) Section 306 of the Antarctic Marine Living Re9 sources Convention Act of 1984 (16 U.S.C. 2435) is

10 amended by redesignating paragraphs (4) through (7) as

11 paragraphs (5) through (8), respectively, and inserting im12 mediately after paragraph (3) the following new para13 graph:

14 ‘‘(4) to introduce a dog into the area south of

15 60 degrees south latitude or, unless authorized by a

16 permit issued under section 6 of the Antarctic Sci17 entific Research, Tourism, and Marine Resources

18 Act of 1993, to introduce any other nonindigenous

19 animal or plant into such area;’’.

20 (d) CONFORMING AMENDMENTS.—(1) Section

21 309(a) of the Antarctic Marine Living Resources Conven22 tion Act of 1984 (16 U.S.C. 2438(a)) is amended by strik23 ing ‘‘(4), (5), (6), or (7)’’ and inserting in lieu thereof

24 ‘‘(5), (6), (7), or (8)’’.
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1 (2) Section 310(b)(8) of the Antarctic Marine Living

2 Resources Convention Act of 1984 (16 U.S.C. 2439(b)(8))

3 is amended by striking ‘‘(4), (5), (6), or (7)’’ and inserting

4 in lieu thereof ‘‘(5), (6), (7), or (8)’’.

5 SEC. 16. AMENDMENTS TO THE ACT TO PREVENT POLLU6 TION FROM SHIPS.

7 (a) DEFINITIONS.—Section 2(a) of the Act to Pre8 vent Pollution from Ships (33 U.S.C. 1901(a)) is amend9 ed—

10 (1) in paragraph (8) by striking ‘‘and’’ at the

11 end;

12 (2) in paragraph (9) by striking the period and

13 inserting in lieu thereof a semicolon; and

14 (3) by adding at the end the following new

15 paragraphs:

16 ‘‘(10) ‘Antarctica’ means the area south of 60

17 degrees south latitude, including all ice shelves; and

18 ‘‘(11) ‘Antarctic Protocol’ means the Protocol

19 on Environmental Protection to the Antarctic Trea20 ty, done at Madrid on October 4, 1991, and all

21 annexes thereto.’’.

22 (b) APPLICATION OF ANNEX IV.—Section 2 of the

23 Act to Prevent Pollution from Ships (33 U.S.C. 1901) is

24 amended by adding at the end the following new sub25 section:
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1 ‘‘(c) The requirements of Annex IV to the Antarctic

2 protocol shall apply in Antarctica—

3 ‘‘(1) to all ships described in section 3(a)(1);

4 and

5 ‘‘(2) to all other ships over which the United

6 States has jurisdiction, including all ships engaged

7 in or supporting United States Antarctic oper8 ations.’’

9 (c) SHIPS COVERED BY THE ACT.—Section 3 of the

10 Act to Prevent Pollution from Ships (33 U.S.C. 1902) is

11 amended—

12 (1) in subsection (a) by striking ‘‘and’’ after the

13 semicolon at the end of paragraph (3), by striking

14 the period at the end of paragraph (4) and inserting

15 in lieu thereof ‘‘; and’’, and by adding at the end the

16 following new paragraph:

17 ‘‘(5) with respect to Annex IV to the Antarctic

18 Protocol, to all ships described in paragraph (1) and

19 to all other ships over which the United States has

20 jurisdiction, including all ships engaged in or sup21 porting United States Antarctic operations.’’; and

22 (2) in subsection (b)(2)—

23 (A) in subparagraph (A) by striking ‘‘sub24 paragraph (B)’’ and inserting in lieu thereof

25 ‘‘subparagraph (C)’’;
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1 (B) by redesignating subparagraph (B) as

2 subparagraph (C); and

3 (C) by inserting immediately after sub4 paragraph (A) the following new subparagraph:

5 ‘‘(B) Notwithstanding any provision of the Antarctic

6 Protocol and subject to subparagraph (C), the require7 ments of Annex IV to that Protocol shall apply to a ship

8 referred to in paragraph (1)(A) operating in Antarctica.’’.

9 (d) ADMINISTRATION.—Section 4(a) of the Act to

10 Prevent Pollution from Ships (33 U.S.C. 1903(a)) is

11 amended in the first sentence by inserting ‘‘, Annex IV

12 to the Antarctic Protocol,’’ immediately after ‘‘MARPOL

13 Protocol’’.

14 (e) REGULATIONS.—Section 4 of the Act to Prevent

15 Pollution from Ships (33 U.S.C. 1903) is amended—

16 (1) in subsection (b)(1) by inserting ‘‘, Annex

17 IV to the Antarctic Protocol,’’ immediately after

18 ‘‘MARPOL Protocol’’; and

19 (2) by adding at the end of subsection (b) the

20 following new paragraph:

21 ‘‘(3) The Secretary shall prescribe, within 2 years

22 after the effective date of the Antarctic Scientific Re23 search, Tourism, and Marine Resources Act of 1993, regu24 lations to implement Annex IV to the Antarctic Protocol,

25 regulations to ensure that all ships described in section
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1 3(a)(1) and all other ships over which the United States

2 has jurisdiction have contingency plans for marine pollu3 tion incidents in Antarctica.’’.

4 (f) SHIPBOARD RETENTION OF WASTES.—Section 6

5 of the Act to Prevent Pollution from Ships (33 U.S.C.

6 1905) is amended by adding at the end the following new

7 subsection:

8 ‘‘(g) The Secretary shall ensure that all ships de9 scribed in section 3(a)(1) and all other ships over which

10 the United States has jurisdiction, before entering Antarc11 tica—

12 ‘‘(1) have sufficient capacity in accordance with

13 Annex IV to the Antarctic Protocol to retain on

14 board, all oil, noxious liquid substances, and gar15 bage; and

16 ‘‘(2) have concluded arrangements to discharge

17 oil, noxious liquid substances, and garbage at recep18 tion facilities outside of Antarctica.’’.

19 (g) VIOLATIONS AND ENFORCEMENT.—Section 8 of

20 the Act to Prevent Pollution from Ships (33 U.S.C. 1907)

21 is amended—

22 (1) in subsection (a)—

23 (A) in the first sentence by inserting

24 ‘‘Annex IV to the Antarctic Protocol,’’ imme25 diately after ‘‘MARPOL Protocol,’’; and
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1 (B) by inserting immediately after the sec2 ond sentence the following: ‘‘The Secretary

3 shall cooperate with other parties to the Ant4 arctic Protocol in the detection of violations of

5 Annex IV to that Protocol and in the enforce6 ment of Annex IV.’’;

7 (2) in subsection (b)—

8 (A) in the fourth sentence by inserting ‘‘or

9 Annex IV to the Antarctic Protocol as applica10 ble,’’ immediately after ‘‘MARPOL Protocol’’;

11 and

12 (B) in the fifth sentence by inserting ‘‘or

13 a party to the Antarctic Protocol’’ immediately

14 after ‘‘MARPOL Protocol’’; and

15 (3) in subsection (e)—

16 (A) in paragraph (2) by inserting ‘‘, of

17 Annex IV to the Antarctic Protocol,’’ imme18 diately after ‘‘MARPOL Protocol’’;

19 (B) by redesignating paragraph (2) as

20 paragraph (3); and

21 (C) by inserting immediately after para22 graph (1) the following:

23 ‘‘(2) The Secretary may inspect at any time a ship

24 described in section 3(a)(1) or any other ship over which

25 the United States has jurisdiction, to verify whether that
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1 ship has discharged oil, a noxious liquid substance, gar2 bage, or sewage in violation of Annex IV to the Antarctic

3 Protocol or in violation of any provision of this Act that

4 implements that Protocol.’’.

5 (h) PENALTIES.—Section 9 of the Act to Prevent

6 Pollution from Ships (33 U.S.C. 1908) is amended—

7 (1) in subsection (a) by inserting ‘‘Annex IV to

8 the Antarctic Protocol,’’ immediately after

9 ‘‘MARPOL Protocol,’’;

10 (2) in subsection (b) by inserting ‘‘Annex IV to

11 the Antarctic Protocol,’’ immediately after

12 ‘‘MARPOL Protocol,’’ any place it appears;

13 (3) in subsection (d) by inserting ‘‘Annex IV to

14 the Antarctic Protocol,’’ immediately after

15 ‘‘MARPOL Protocol,’’;

16 (4) in subsection (e) by inserting ‘‘, Annex IV

17 to the Antarctic Protocol,’’ immediately after

18 ‘‘MARPOL Protocol’’; and

19 (5) in subsection (f) by inserting ‘‘or to the

20 Antarctic Protocol’’ immediately after ‘‘MARPOL

21 Protocol’’ each place it appears.

22 SEC. 17. AMENDMENT TO ANTARCTIC PROTECTION ACT OF

23 1990.

24 Section 4 of the Antarctic Protection Act of 1990 (16

25 U.S.C. 2463) is amended by striking ‘‘Pending’’ and all
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1 that follows through ‘‘activities, it’’ and inserting in lieu

2 thereof ‘‘It’’.

3 SEC. 18. RELATION TO EXISTING TREATIES, STATUTES,

4 REGULATIONS, AND PERMITS.

5 (a) IN GENERAL.—Except as provided in subsection

6 (b), nothing in this Act shall be construed as contravening

7 or superseding—

8 (1) any international treaty, convention, or

9 agreement, if such treaty, convention, or agreement

10 is in force with respect to the United States on the

11 date of enactment of this Act; or

12 (2) any statute which implements any such

13 treaty, convention, or agreement.

14 (b) REPEAL.—The Antarctic Conservation Act of

15 1978 (16 U.S.C. 2401 et seq.) is repealed.

16 (c) SAVINGS PROVISIONS.—(1) Nothing in this Act

17 shall affect the authority of the Director—

18 (A) to support basic research investigations of

19 the Antarctic environment to understand globally

20 important processes; and

21 (B) to operate, in accordance with this Act,

22 United States facilities, bases, and stations in Ant23 arctica.

24 (2) All regulations issued under the Antarctic Con25 servation Act of 1978 (16 U.S.C. 2401 et seq.) shall re-
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1 main in effect until superseded by regulations promul2 gated under section 9 of this Act, or by revised regulations

3 promulgated under the Act to Prevent Pollution from

4 Ships, as amended by section 16 of this Act; except that

5 if the regulations issued under the Antarctic Conservation

6 Act of 1978 are inconsistent with the Protocol or have

7 been superseded by the provisions of this Act, the Protocol

8 and this Act shall control.

9 (3) All permits issued under the Antarctic Conserva10 tion Act of 1978 (16 U.S.C. 2401 et seq.) shall remain

11 in effect until they expire in accordance with the terms

12 of those permits.

13 SEC. 19. REPORT TO CONGRESS.

14 Not later than 2 years after the date of enactment

15 of this Act, the Director shall submit to the Committee

16 on Commerce, Science, and Transportation of the Senate

17 and the Committee on Merchant Marine and Fisheries of

18 the House of Representatives a report on the implementa19 tion of the Protocol and this Act.

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