[Federal Register Volume 66, Number 126 (Friday, June 29, 2001)]
[Proposed Rules]
[Pages 34746-34760]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-16436]



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Part II





Environmental Protection Agency





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40 CFR Part 8



Environmental Impact Assessment of Nongovernmental Activities in 
Antarctica; Proposed Rule

Federal Register / Vol. 66, No. 126 / Friday, June 29, 2001 / 
Proposed Rules

[[Page 34746]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 8

[FRL-7004-9]


Environmental Impact Assessment of Nongovernmental Activities in 
Antarctica

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: Public Law 104-227, the Antarctic Science, Tourism, and 
Conservation Act of 1996 (the Act), amends the Antarctic Conservation 
Act of 1978 to implement the Protocol on Environmental Protection (the 
Protocol) to the Antarctic Treaty of 1959 (the Treaty). The Act directs 
the Environmental Protection Agency (EPA) to promulgate regulations 
that provide for assessment of the environmental impacts of 
nongovernmental activities in Antarctica and for coordination of the 
review of information regarding environmental impact assessments 
received from other Parties under the Protocol. This proposed rule 
would establish requirements for assessments and coordination.

DATES: Comments must be received on or before July 30, 2001.

ADDRESSES: Send written comments to Mr. Joseph Montgomery; Director, 
NEPA Compliance Division; Office of Federal Activities (2252A); U.S. 
Environmental Protection Agency; 1200 Pennsylvania Avenue, NW.; 
Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Mr. Joseph Montgomery or Ms. Katherine 
Biggs at telephone: (202) 564-7157 or (202) 564-7144, respectively.

SUPPLEMENTARY INFORMATION: This preamble is organized according to the 
following outline:

I. Introduction
    A. Statutory Background
    B. Background of the Rulemaking
II. Description of Program and These Proposed Regulations
    A. The Antarctic Treaty and Protocol
    B. The Purpose of These Proposed Regulations
    C. Summary of the Protocol
    D. Activities Covered by These Proposed Regulations
    1. Persons Required to Carry Out an EIA
    2. Differences Between Governmental and Nongovernmental 
Activities
    3. Appropriate Level of Environmental Documentation
    4. Criteria for a CEE
    5. Measures to Assess and Verify Environmental Impacts
    E. Incorporation of Information, Consolidation of Environmental 
Documentation, Waiver or Modification of Deadlines, and Provision 
for Multi-Year Environmental Documentation
    F. Submission of Environmental Documents
    G. Prohibited Acts, Enforcement and Penalties
    H. Provision for Categorical Exclusions
III. Coordination of Review of Information Received from Other 
Parties to the Treaty
IV. Executive Order 12866 Clearance
V. Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA, 5 
U.S.C. 601 et seq.)
VI. Unfunded Mandates Reform Act
VII. Paperwork Reduction Act
VIII. National Technology Transfer and Advancement Act of 1995 
(``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 272 note)
IX. Executive Order 12898, Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations
X. Executive Order 13132, Federalism
XI. Executive Order 13175, Tribal Consultation
XII. Executive Order 13045, Protection of Children from 
Environmental Health Risks and Safety Risks

I. Introduction

A. Statutory Background

    On October 2, 1996, the President signed into law the Antarctic 
Science, Tourism, and Conservation Act of 1996 (the Act). The purpose 
of the Act is to implement the provisions of the Protocol on 
Environmental Protection (the Protocol) to the Antarctic Treaty of 1959 
(the Treaty). The Act provides that: ``The [Environmental Protection 
Agency] shall within 2 years after the date of * * * enactment * * * 
promulgate regulations to provide for * * * the environmental impact 
assessment of nongovernmental activities, including tourism, for which 
the United States is required to give advance notice under Paragraph 5 
of Article VII of the Treaty * * * and * * * coordination of the review 
of information regarding environmental impact assessment received from 
other Parties under the Protocol.'' Regulations must be ``consistent 
with Annex I to the Protocol.''

B. Background of the Rulemaking

    Although the Act gave the Environmental Protection Agency (EPA) two 
years to promulgate regulations, the United States (U.S.) sought 
immediate ratification of the Protocol which, in turn, required EPA, 
contemporaneous with ratification, to have regulations in effect which 
enabled the U.S. to comply with its obligations under the Protocol. 
Accordingly, on April 30, 1997, EPA promulgated an interim final rule 
so that the United States could ratify the Protocol and implement its 
obligations under the Protocol as soon as the Protocol entered into 
force.
    Because of the importance of facilitating the Protocol's prompt 
entry into force, EPA believed it had good cause under 5 U.S.C. 
553(b)(B) to find that implementation of notice and comment procedures 
for the interim final rule would be contrary to the public interest and 
unnecessary. Therefore, the interim final regulations were issued 
without notice and an opportunity to comment and, for the same reasons, 
under 5 U.S.C. 553(d)(3), the interim final regulations took effect on 
April 30, 1997.
    Further, EPA believed that public comment on the requirements for 
environmental documentation, including procedures and content, in the 
interim final regulations was unnecessary because the interim final 
regulations incorporated the environmental documentation requirements 
of the Protocol, which was signed by the U.S. in 1991 and received the 
advice and consent of the Senate in 1992. Specifically, language from 
the Protocol was incorporated into the interim final regulations 
regarding the content of initial environmental evaluation (IEE) and 
comprehensive environmental evaluation (CEE) documentation as required 
by the Protocol, and the timing requirements of the interim final 
regulations were set out to meet those established by Annex I to the 
Protocol.
    At the time the interim final regulations were promulgated, EPA 
announced its plans to provide extensive opportunities for public 
comment in the development of the proposed final regulations. EPA 
stated the final regulations would be proposed and promulgated in 
accordance with the provisions of the Administrative Procedure Act (5 
U.S.C. 553 et seq.), which generally requires notice to the public, 
description of the substance of the proposed rule and an opportunity 
for public comment. Further, EPA announced that it would prepare under 
the National Environmental Policy Act (42 U.S.C. 4321 et seq.) an 
Environmental Impact Statement (EIS), which would consider the 
environmental impacts of the proposed rule and alternatives and which 
would address the environmental and regulatory issues raised by 
interested agencies, organizations, groups and individuals and that the 
public would have an opportunity to participate in the scoping process 
for the EIS. The Notice of Availability for the ``Draft Environmental 
Impact Statement for the Proposed Rule on Environmental Impact

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

II. Description of Program and These Proposed Regulations

A. The Antarctic Treaty and Protocol

    The Antarctic Treaty of 1959 entered into force in 1961 and 
guarantees freedom of scientific research in Antarctica, reserves 
Antarctica exclusively for peaceful purposes, establishes regular 
meetings of the Parties to the Treaty (Parties) to develop measures to 
implement the Treaty and to deal with issues that may arise, and 
freezes territorial claims. Currently 27 countries participate in 
decision-making under the Treaty as Consultative Parties. Seventeen 
other countries are Parties, but may not block decisions taken by 
consensus of the Consultative Parties.
    As human activities in Antarctica intensified, concern grew 
regarding the effects of such activities on the Antarctic environment 
and the potential consequences of the development of mineral resources. 
In 1990, the U.S. Congress responded by passing the Antarctic 
Protection Act, which prohibited persons subject to U.S. jurisdiction 
from engaging in Antarctic mineral resource activities and called for 
the negotiation of an environmental protection agreement.
    Over the years, the Antarctic Treaty Parties have adopted a variety 
of measures to protect the Antarctic environment. In 1991, the Parties 
adopted the Protocol on Environmental Protection which builds upon the 
Treaty by extending and strengthening Antarctic environmental 
protection. The Protocol designates Antarctica as a natural reserve 
dedicated to peace and science, and bans non-scientific mineral 
activities. The Protocol requires prior assessment of the possible 
environmental impacts of all activities to be carried out in 
Antarctica. It establishes the Committee for Environmental Protection 
(the Committee) to provide expert scientific and technical advice to 
the Parties on measures necessary to effectively implement the 
Protocol. The Protocol requires that draft CEEs for activities likely 
to have more than a minor or transitory impact on Antarctica and its 
dependent and associated ecosystems be provided to the Parties and to 
the Committee. Because legislation was needed in order for the United 
States to be able to implement its obligations under the Protocol, the 
Antarctic Science, Tourism, and Conservation Act of 1996 was enacted by 
Congress. The Act directs EPA to issue regulations implementing the 
requirements for environmental impact assessments of nongovernmental 
activities, including tourism, for which the U.S. is required to give 
advance notice under the Treaty.

B. The Purpose of These Proposed Regulations

    The purpose of these proposed regulations is to provide for the 
evaluation of the potential environmental impact of those 
nongovernmental activities in Antarctica, including tourism, for which 
the United States is required to give advance notice under paragraph 5 
of Article VII of the Treaty. The Treaty requires notice of, inter 
alia, ``all expeditions to Antarctica organized in or proceeding from'' 
the United States. In addition, these regulations would provide for 
coordination of reviews of draft CEEs received from other Parties, in 
accordance with the Protocol. The Act states that these regulations are 
to be consistent with Annex I to the Protocol.
    Among other things, these proposed regulations specify the 
procedures that would need to be followed by any person or persons 
organizing a nongovernmental expedition to or within Antarctica 
(`operator' or `operators') in evaluating the potential environmental 
impacts of their activities. These proposed regulations include 
considerations and elements relevant to environmental documentation of 
the evaluation, as well as procedures for submission of environmental 
documentation that would allow the EPA to review whether the evaluation 
meets the provisions of the proposed regulations and the requirements 
of Annex I of the Protocol.
    Operators currently provide information prior to each Antarctic 
summer season to the Department of State to meet U.S. obligations for 
notification pursuant to Article VII of the Treaty, which requires 
advance notice of expeditions to and within Antarctica. This 
information is also part of the basic information requirements for 
preparation of environmental documentation, as addressed in Section 
8.4(a) of these proposed regulations. While operators would be required 
to include this information in environmental documentation, they could 
also continue to provide this information directly to the Department of 
State.

C. Summary of the Protocol

    This proposed rule would implement Annex I to the Protocol, which 
describes procedures to be used in conducting environmental impact 
assessments of effects of activities in Antarctica. Article 8 of the 
Protocol provides that Parties to the Protocol ensure that the 
assessment procedures of Annex I are applied in planning processes 
leading to decisions about any activities, including nongovernmental 
activities, including tourism, to be undertaken in the Antarctic Treaty 
area for which advance notice is required under paragraph 5 of Article 
VII of the Treaty.
    The procedures set forth in Annex I require that all proposed 
activities by operators be assessed, through one or more stages of 
assessment. If an activity will have an impact that is less than minor 
or transitory, only a preliminary environmental assessment would need 
to be submitted under these proposed regulations before the activity 
proceeds. For an activity that will have no more than a minor or 
transitory impact, an initial environmental evaluation (IEE) would need 
to be submitted under these proposed regulations before the activity

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proceeds. Finally, if it is determined (through an IEE or otherwise) 
that an activity is likely to have more than a minor or transitory 
impact, a comprehensive environmental evaluation (CEE) would need to be 
submitted under these proposed regulations before the activity 
proceeds.
    An IEE describes an activity's purpose, location, duration and 
intensity, and considers alternatives and assesses impacts, including 
cumulative impacts, in light of existing and known proposed activities. 
A CEE is a detailed analysis that comprehensively evaluates the 
activity, its impacts, alternatives, mitigation and the like. A draft 
CEE must be provided to the Parties and the Committee at least 120 days 
before the next consultative meeting where the draft CEE may be 
addressed. No final decision shall be taken to proceed with any 
activity for which a CEE is prepared unless there has been an 
opportunity for consideration of the draft CEE at an Antarctic Treaty 
Consultative Meeting (ATCM) on the advice of the Committee (unless the 
decision to proceed with the activity has already been delayed more 
than 15 months since the date of circulation of the draft CEE). A final 
CEE must be circulated at least 60 days before commencement of the 
proposed activity. Any decision by the operator on whether a proposed 
activity should proceed in either its original or modified form must be 
based upon the final CEE as well as other relevant considerations, and 
procedures must be put in place for monitoring the impact of any 
activity that proceeds following completion of a CEE.
    Evaluations need to address Annex I to the Protocol. The 
information contained in an evaluation should allow the operator to 
make decisions based on a sound understanding of factors relevant to 
the likely impact of the proposed activity. An evaluation should, as 
appropriate, contain sufficient information to allow assessments of, 
and informed judgements about, the likely impacts of proposed 
activities on the Antarctic environment and on the value of the 
Antarctic environment for the conduct of scientific research. Depending 
on the specific circumstances surrounding the proposed activities, 
various factors may be relevant for consideration in the environmental 
impact assessment process such as the scope, duration and intensity of 
the activity proposed in Antarctica, cumulative impacts, impacts on 
other activities in the Antarctic Treaty area, and capacity to assess 
and verify adverse environmental impacts. Operators may also find it 
appropriate to consider the availability of technology and procedures 
for environmentally safe operations and whether there exists the 
capacity to respond promptly and effectively to accidents with 
environmental effects.

D. Activities Covered by These Proposed Regulations

1. Persons Required To Carry Out an EIA
    The requirements of these proposed regulations would apply to 
operators of nongovernmental expeditions organized in or proceeding 
from the territory of the United States to Antarctica. The term 
``expedition'' is taken from paragraph 5 of Article VII of the Treaty 
and encompasses all actions or activities undertaken by a 
nongovernmental expedition while it is in Antarctica. These proposed 
regulations would not apply to individual U.S. citizens or groups of 
citizens planning to travel to Antarctica on an expedition for which 
they are not acting as an operator.
    For a commercial tour, typical functions of an operator would 
include, for example, acting as the primary person or group of persons 
responsible for acquiring use of vessels or aircraft, hiring expedition 
staff, planning itineraries, and other organizational responsibilities. 
Non-commercial expeditions covered by these proposed regulations would 
include trips by yachts, skiing or mountaineering expeditions, 
privately funded research expeditions, and other nongovernmental or 
nongovernment-sponsored activities.
    These proposed regulations would not apply to U.S. citizens who 
participate in tours organized in and proceeding from countries other 
than the United States. As provided in the Protocol, the proposed 
requirements do not apply to activities undertaken in the Antarctic 
Treaty area that are governed by the Convention on the Conservation of 
Antarctic Marine Living Resources or the Convention for the 
Conservation of Antarctic Seals. Persons traveling to Antarctica are 
subject to the requirements of the Marine Mammal Protection Act, 16 
U.S.C. 1371 et seq.
2. Differences Between Governmental and Nongovernmental Activities
    These proposed regulations would not apply to governmental 
activities. C.f. 45 CFR 641.10 through 641.22 (National Science 
Foundation regulations for assessing impacts of governmental activities 
in Antarctica). However, EPA believes that, to the extent practicable, 
similar procedures should generally be used for assessing both 
governmental and nongovernmental activities. Consistent with this 
approach, these proposed regulations generally establish procedures for 
assessing the impacts of nongovernmental activities in Antarctica 
similar to those used for governmental activities under the National 
Science Foundation regulations.
    However, EPA also recognizes that it will not always be appropriate 
to apply identical standards and procedures for governmental and 
nongovernmental activities. Specifically, numerous mechanisms and 
processes exist to ensure public scrutiny and accountability of 
governmental activities. In some instances, no comparable mechanisms or 
processes exist for nongovernmental activities. Thus, these proposed 
regulations provide for direct federal review of each nongovernmental 
environmental impact assessment by giving EPA authority to review, in 
consultation with other interested federal agencies, nongovernmental 
environmental impact assessments for compliance with the requirements 
of Annex I to the Protocol and these proposed regulations.
    To promote consistency regarding environmental documentation, EPA 
intends to consult with the National Science Foundation and other U.S. 
government agencies with appropriate expertise in the course of 
reviewing the assessments of proposed nongovernmental activities in the 
Antarctic. Further, following the final response from the operator to 
EPA's initial comments, EPA would obtain the concurrence of the 
National Science Foundation in making any determination that the 
environmental documentation submitted by an operator fails to meet the 
requirements under Article 8 and Annex I to the Protocol and the 
provisions of these proposed regulations.
3. Appropriate Level of Environmental Documentation
    (a) Preliminary Environmental Review Memorandum (PERM). These 
proposed regulations provide that an operator who asserts that an 
expedition will have less than a minor or transitory impact would 
provide a Preliminary Environmental Review Memorandum (PERM) to the EPA 
no later than 180 days before the proposed departure of the expedition 
to Antarctica. The timing requirement has been established to provide 
sufficient time for the operator to prepare an IEE if one is needed. 
The EPA, in consultation with other interested federal agencies, would 
review the PERM to determine if it is sufficient to demonstrate that 
the activity will have less than a minor or transitory impact or 
whether additional

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environmental documentation, i.e., an IEE or CEE, is required to meet 
the obligations of Annex I. The EPA would provide its comments to the 
operator within fifteen (15) days of receipt of the PERM, and the 
operator would have seventy-five (75) days to prepare a revised PERM or 
an IEE, if necessary. Following the final response from the operator, 
EPA may make a finding that the environmental documentation submitted 
does not meet the requirements of Article 8 and Annex I of the Protocol 
and the provisions of these regulations. This finding would be made 
with the concurrence of the National Science Foundation. If EPA does 
not provide such notice within thirty (30) days, the operator would be 
deemed to have met the requirements of these proposed regulations.
    If EPA recommends an IEE and one is prepared and submitted within 
the seventy-five (75) day response period, the schedule for review 
would follow the time frames set out for an IEE in these regulations. 
(See: section II.D.3(b), below.) Should EPA recommend a CEE, timing 
requirements applicable to CEEs may necessitate a delay in plans to 
initiate a proposed activity. Operators are encouraged to consult with 
EPA on options in this regard.
    (b) Initial Environmental Evaluation (IEE). Article 2 of Annex I to 
the Protocol requires that unless it has been determined that an 
activity will have less than a minor or transitory impact, or unless a 
CEE is being prepared in accordance with Article 3 of Annex I, an IEE 
must be prepared. Among the items to be included in an IEE to document 
that an activity will have no more than a minor or transitory impact 
are the cumulative impacts of the proposed activity in light of 
existing and known proposed activities. Expeditions, by their nature, 
involve the transport of persons to Antarctica that will result in 
physical impacts, which may include, but not be limited to: Air 
emissions, discharges to the ocean, noise from engines, landings for 
sight-seeing, and activities by visitors near wildlife. Accordingly, it 
is EPA's view, which has been confirmed by its experience under the 
interim final regulations, that, at a minimum, an IEE is the 
appropriate level of environmental documentation for proposed 
activities where multiples of the activity over time are likely and may 
create a cumulative impact, unless an existing IEE or CEE supports a 
finding that the type of activity proposed results in a less than minor 
or transitory cumulative impact. However, as noted below, it is also 
EPA's view that the types of nongovernmental activities that are 
currently being carried out will typically be unlikely to have impacts 
that are more than minor or transitory assuming that activities will be 
carried out in accordance with the guidelines set forth in the ATCM 
Recommendation XVIII-1, Tourism and Non-Governmental Activities, the 
relevant provisions of other U.S. statutes, and Annexes II-V to the 
Protocol. In the event that a determination is made that a CEE is 
needed to meet the requirements of Annex I to the Protocol and the 
provisions of these proposed regulations, timing requirements 
applicable to CEEs may necessitate a delay in plans to initiate a 
proposed activity, and operators are encouraged to consult with EPA on 
options.
    Any operator who wishes to make an expedition to Antarctica would 
be required to provide an IEE to EPA no less than ninety (90) days 
prior to the proposed departure of the expedition to Antarctica unless: 
(1) A decision has been made to prepare a CEE, or (2) the operator has 
submitted a PERM and there has not been a finding within the time 
limits of these regulations that the PERM fails to meet the 
requirements under Annex I to the Protocol and the provisions of these 
proposed regulations.
    The EPA would provide its comments to the operator within thirty 
(30) days of receipt of the IEE, and the operator would have forty-five 
(45) days to prepare a revised IEE, if necessary. Following the final 
response from the operator, EPA may make a finding that the 
documentation submitted does not meet the requirements of Article 8 and 
Annex I of the Protocol and the provisions of these regulations. This 
finding would be made with the concurrence of the National Science 
Foundation. If such a notice is required, EPA would provide it within 
fifteen (15) days of receiving the final IEE from the operator or, if 
the operator does not provide a final IEE, within sixty (60) days 
following EPA's comments on the original IEE. If EPA does not provide 
notice within these time limits, the operator would be deemed to have 
met the requirements of these proposed regulations, provided that 
procedures, which may include appropriate monitoring, are carried out 
to assess and verify the impact of the activity.
    If a CEE is required, the operator must adhere to the time limits 
applicable to such documentation. (See: section II.D.3.(c), below.) In 
the event that a determination is made that a CEE is required, EPA, at 
the operator's request, would consult with the operator regarding 
possible changes in the proposed activity that would allow preparation 
of an IEE.
    The EPA, upon receipt of an IEE, would electronically publish 
notice of its receipt on the Office of Federal Activities' World Wide 
Web Site: 
http://www.epa.gov/oeca/ofa/. The Department of State would circulate 
to the Parties and make publicly available a copy of an annual list of 
IEEs prepared by U.S. operators in accordance with Article 2 of Annex I 
of the Protocol and any decisions taken in consequence thereof. Any IEE 
prepared in accordance with these regulations would be made available 
by the EPA on request.
    (c) Comprehensive Environmental Evaluation (CEE). Article 3(4), of 
Annex I of the Protocol requires that draft CEEs be distributed to all 
Parties and the Committee 120 days in advance of the next Antarctic 
Treaty Consultative Meeting at which the CEE may be addressed. Since 
the next ATCM is anticipated to be in July 2001, CEEs prepared for 
nongovernmental activities in the 2001-2002 season would have to have 
been distributed by March 2001. Operators who are anticipating 
activities for the 2002-2003 season which would require a CEE are 
encouraged to consult with the EPA as soon as possible.
    In order to meet the requirements of Article 3(4), of Annex I of 
the Protocol which requires that draft CEEs be distributed to all 
Parties and the Committee 120 days in advance of the next Antarctic 
Treaty Consultative Meeting at which the CEE may be addressed, and 
because the ATCM generally meets in May, the schedule in the proposed 
regulations for submitting a draft CEE is the preceding November in 
order to ensure time for its distribution to all Parties and the 
Committee 120 days in advance of the ATCM. Thus, for example, for the 
2002-2003 season, any operator who plans an activity which would 
require a CEE would need to submit a draft of the CEE to EPA by 
December 1, 2001. Within fifteen (15) days of receipt of the draft CEE, 
EPA would send it to the Department of State for transmittal as a draft 
CEE to other Parties and EPA would publish notice of receipt of the CEE 
in the Federal Register and would provide copies to any person upon 
request. The EPA would accept public comments on the CEE for a period 
of ninety (90) days following notice in the Federal Register. The EPA 
would make these public comments available to the operator.
    The EPA, in consultation with other interested federal agencies, 
would review the CEE to determine if it meets the requirements under 
Annex I to the Protocol and the provisions of these

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proposed regulations and transmit its comments to the operator within 
120 days following publication of notice of availability in the Federal 
Register to allow for the inclusion of any additional information in 
the CEE. The operator would need to prepare a final CEE that addresses 
and includes or summarizes any comments on the draft CEE received from 
EPA, the public and the Parties. The final CEE would need to be sent to 
EPA at least seventy-five (75) days before proposed departure. 
Following the final response from the operator, the EPA would inform 
the operator if EPA, with the concurrence of the National Science 
Foundation, makes the finding that the environmental documentation 
submitted does not meet the requirements of Article 8 and Annex I of 
the Protocol and the provisions of these regulations. This notification 
would occur within fifteen (15) days of submittal of the final CEE if 
the CEE is submitted by the operator within the time limits set out in 
these regulations. If no final CEE is submitted by the operator, or if 
the operator fails to meet these time limits, EPA would provide such 
notification sixty (60) days prior to departure of the expedition. If, 
after receipt of such notification, the operator proceeds with the 
expedition without fulfilling the requirements of these regulations, 
the operator would be subject to enforcement proceedings pursuant to 
Sections 7, 8, and 9 of the Antarctic Conservation Act, as amended by 
the Act; 16 U.S.C. 2407, 2408, 2409, and 45 CFR part 672. If EPA does 
not provide notice, the operator would be deemed to have met the 
requirements of these regulations provided that procedures, which 
include appropriate monitoring, are carried out to assess and verify 
the impact of the activity. The EPA would transmit the final CEE to the 
Department of State which would circulate it to all Parties no later 
than sixty (60) days before proposed departure of the expedition, along 
with a notice of any decisions by the operator relating thereto. The 
EPA would publish a notice of availability of the final CEE in the 
Federal Register.
    Operators are encouraged to consult with the EPA as early as 
possible if there are questions as to whether a CEE would be required 
for a proposed expedition.
    (d) Mitigation. If an operator chooses to mitigate and the 
mitigation measures are the basis for the level of environmental 
documentation, EPA would assume the operator would proceed with these 
mitigation measures. Otherwise, the documentation may not have met the 
requirements of Article 8 and Annex I and the provisions of these 
proposed regulations.
4. Criteria for a CEE
    Article 3 of Annex I to the Protocol requires a CEE when it is 
determined that an activity is likely to have more than a minor or 
transitory impact. While the need for a CEE would be evaluated for each 
activity on a case-by-case basis, it is EPA's view that the type of 
nongovernmental activities that are currently being carried out will 
typically be unlikely to have impacts that are more than minor or 
transitory.
    However, the need for a CEE could be triggered by a proposed 
activity that represents a major departure from current nongovernmental 
activities, resulting in a large increase in adverse environmental 
impact at a site. Similarly, a CEE may be required if an activity is 
likely to give rise to particularly complex, cumulative, large-scale or 
irreversible effects, such as perturbations in unique and very 
sensitive biological systems. An example of an activity that might 
require a CEE would be the construction and operation of a new crushed 
rock airstrip or runway.
    In evaluating whether a CEE is the appropriate level of 
environmental documentation, the EPA would consider the impact in terms 
of the context of the Antarctic environment and the intensity of the 
activity. The Antarctic environment is for the most part unspoiled, has 
intrinsic value, and is of great value to science and to humankind's 
overall understanding of the global environment. In addition, because 
of the location and uniqueness of the ecosystem, there would likely be 
great difficulty responding to environmental threats and mitigating 
damage to the Antarctic ecosystem. The EPA believes a comparable 
threshold should be applied in determining whether an activity may have 
an impact that is more than minor or transitory under these proposed 
regulations as is used in determining if a federal activity will have a 
significant effect for purposes of the National Environmental Policy 
Act (NEPA). See 40 CFR 1508.27. For this reason, for purposes of these 
proposed regulations and consistent with the environmental impact 
assessment regulations for federal activities, the term ``more than a 
minor or transitory impact'' has been defined to have the same meaning 
as the term ``significantly'' under NEPA. 16 U.S.C. 2403a(a)(1)(B); 40 
CFR 1508.27.
    The recommendation to add this definition to these proposed 
regulations was made to EPA during the scoping process and was 
considered in the DEIS prepared by EPA that considered the alternatives 
for this proposed rule. The Agency is interested in receiving comments 
on this definition in these proposed regulations.
5. Measures To Assess and Verify Environmental Impacts
    The Protocol and these proposed regulations require an operator to 
employ procedures to assess and provide a regular and verifiable record 
of the actual impacts of any activity that proceeds on the basis of an 
IEE or CEE. The record developed through these measures would need to 
be designed to: (a) Enable assessments to be made of the extent to 
which such impacts are consistent with the Protocol; and (b) provide 
information useful for minimizing and mitigating those impacts, and, 
where appropriate, on the need for suspension, cancellation, or 
modification of the activity. Moreover, an operator would need to 
monitor key environmental indicators for an activity proceeding on the 
basis of a CEE. An operator may also need to carry out monitoring in 
order to assess and verify the impact of an activity for which an IEE 
has been prepared.
    For activities requiring an IEE, an operator should be able to use 
procedures currently being voluntarily utilized by operators to provide 
the required information. For example, such information could include, 
as appropriate and to the best of the operator's knowledge: 
Identification of the number of tourists put ashore at each site, the 
number and location of each landing site, the total number of tourists 
at each site per ship and for the season; the number of times the site 
has been visited in the past; the number of times the site is expected 
to be visited in the forthcoming season; the times of the year that 
visits are expected to occur (e.g., before, during, or after the 
penguin breeding season); the number of visitors expected to be put 
ashore at the site at any one time and over the course of a particular 
visit; what visitors are expected to do while at the site; verification 
that guidelines for tourists are followed; description of any tourist 
exceptions to the landing guidelines; and a description of any activity 
requiring mitigation, the mitigative actions undertaken, and the actual 
or projected outcome of the mitigation.
    These proposed regulations do not set out detailed monitoring 
procedures for activities requiring a CEE because the Parties are still 
working to identify monitoring approaches that can best support the 
Protocol's implementation. Thus, should an activity require a CEE, the 
operator should consult with EPA

[[Page 34751]]

to: (a) identify the monitoring regime appropriate to that activity, 
and (b) determine whether and how the operator might utilize relevant 
monitoring data collected by the U.S. Antarctic Program. The EPA would 
consult with the National Science Foundation and other interested 
federal agencies regarding this monitoring regime.

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

    The EPA is strongly committed to minimizing unnecessary paperwork 
and to implementation of these proposed regulations such that undue 
burden is not placed on operators, particularly in view of the time 
requirements associated with environmental documentation requirements. 
Therefore, provided that documentation complies with all applicable 
provisions of Annex I to the Protocol and these proposed regulations, 
and, provided that the environmental documentation is appropriate in 
light of the specific circumstances of each operator's expedition or 
expeditions, the EPA would allow the following approaches to 
documentation: (1) Material may be incorporated by referring to it in 
the environmental document with its content briefly described when the 
cited material is reasonably available to the EPA; (2) more than one 
proposed expedition by an operator may be included within one 
environmental document and may, if appropriate, include a single 
discussion of components of the environmental analysis that are 
applicable to some or all of the proposed expeditions; (3) one 
environmental document may also be used to address expeditions being 
carried out by more than one operator, provided that the environmental 
documentation includes the names of each operator for which the 
environmental documentation is being submitted pursuant to obligations 
under these proposed regulations; and (4) one environmental document 
may be submitted by one or more operators for proposed expeditions for 
a period of up to five consecutive austral summer seasons, provided 
that the conditions of the multi-year environmental document, including 
the assessment of cumulative impacts, are unchanged. The multi-year 
provision would also allow operators to update basic information and to 
provide information on additional activities to supplement the multi-
year environmental document without having to revise and re-submit the 
entire document. Further, the EPA may waive or modify the deadlines of 
these proposed regulations where EPA determines an operator is acting 
in good faith and that circumstances outside the control of the 
operator created delays, provided that environmental documentation 
fully meets deadlines under the Protocol.
    The multi-year documentation provision was recommended to EPA 
during the scoping process and was considered in the EIS prepared by 
EPA that considered the alternatives for this proposed rule. The Agency 
is interested in receiving comments on this provision in these proposed 
regulations.

F. Submission of Environmental Documents

    The operator would need to submit five copies of its environmental 
documentation, along with an electronic copy in HTML format, if 
available, to the EPA by mail to: U.S. Environmental Protection Agency, 
Office of Federal Activities, Director, NEPA Compliance Division--Mail 
Code 2252A, 1200 Pennsylvania Avenue, NW., Washington, DC 20460.
    Environmental documents may also be sent by special delivery 
(Federal Express, United Parcel Service, etc.) or hand-carried to: U.S. 
Environmental Protection Agency, Office of Federal Activities, 
Director, NEPA Compliance Division--Room 7239A, Ariel Rios Building, 
1200 Pennsylvania Avenue, NW., Washington, DC 20044.
    An operator who wishes to could notify and submit environmental 
documentation at an earlier date than required for this proposed rule. 
The EPA review process, including notification for public review and 
comment, would commence with the submittal of environmental 
documentation and would follow deadlines for response indicated in the 
appropriate sections of this proposed rule.

G. Prohibited Acts, Enforcement and Penalties

    It would be unlawful for any operator to violate these proposed 
regulations. An operator who violates any of these regulations would be 
subject to enforcement, which may include civil and criminal 
enforcement proceedings, and penalties, pursuant to sections 7, 8, and 
9 of the Antarctic Conservation Act, as amended by the Act; 16 U.S.C. 
2407, 2408, 2409, and 45 CFR part 672.

H. Provision for Categorical Exclusions

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

III. Coordination of Review of Information Received From Other 
Parties to the Treaty

    Article 6 of Annex I to the Protocol provides that the following 
information shall be circulated to the Parties, forwarded to the 
Committee for Environmental Protection, and made publicly available: 
(1) A description of national procedures for considering the 
environmental impacts of proposed activities; (2) an annual list of any 
IEEs and any decisions taken in consequence

[[Page 34752]]

thereof; (3) significant information obtained and any action taken in 
consequence thereof with regard to monitoring from IEEs and CEEs; and 
(4) information in a final CEE. In addition, Article 6 requires that 
any IEE be made available on request, and Article 3 requires that draft 
CEEs be circulated to all Parties, who shall make them publicly 
available. A period of ninety (90) days is allowed for the receipt of 
comments. To implement these requirements of the Protocol, this 
proposed rule sets out the process for circulation of this information 
within the United States.
    Upon receipt of a CEE from another Party, the Department of State 
would publish notice of receipt in the Federal Register and would 
circulate a copy of the CEE to all interested federal agencies. The 
Department of State would coordinate responses from federal agencies to 
the CEE and would transmit the coordinated response, if any, to the 
Party that has circulated the CEE. The Department of State would make a 
copy of the CEE available upon request to the public. Members of the 
U.S. public would comment directly to the operator who has drafted the 
CEE and provide a copy to the EPA for its consideration.
    Upon receipt of the annual list from another Party of IEEs prepared 
in accordance with Article 2 of Annex I and any decisions taken in 
consequence thereof, the Department of State would circulate a copy to 
all interested federal agencies. The Department of State would make a 
copy of any list of IEEs from other Parties prepared in accordance with 
Article 2 and any decisions taken in consequence thereof available upon 
request to the public.
    Upon receipt of a description of appropriate national procedures 
for environmental impact statements from another Party, the Department 
of State would circulate a copy to all interested federal agencies. The 
Department of State would make such descriptions available upon request 
to the public.
    Upon receipt from another Party of significant information 
obtained, and any action taken in consequence therefrom from procedures 
put in place with regard to monitoring pursuant to Articles 2(2) and 5 
of Annex I to the Protocol, the Department of State would circulate a 
copy to all interested federal agencies. The Department of State would 
make a copy of this information available upon request to the public.
    Upon receipt of a final CEE from another Party, the Department of 
State would circulate a copy to all interested federal agencies. The 
Department of State would make a copy available upon request to the 
public.

IV. Executive Order 12866 Clearance

    Under Executive Order 12866 (58 FR 51735 (October 4, 1993)) the EPA 
must determine whether the regulatory action is ``significant'' and 
therefore subject to review by the Office of Management and Budget 
(OMB) and the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that this rule is a ``significant regulatory action.'' 
Although none of the first three criteria apply, this rule raises novel 
legal or policy issues arising out of legal mandates under Public Law 
104-227, the Antarctic Science, Tourism, and Conservation Act of 1996 
and the Protocol on Environmental Protection to the Antarctic Treaty of 
1959. Accordingly, this action was submitted to OMB for review. Changes 
made in response to OMB suggestions or recommendations will be 
documented in the public record.

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

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administration with the North American Industry 
Classification System (NAICS) code for ``Tour Operators'' (NAICS code 
561520) with annual maximum receipts of $5.0 million (13 CFR part 121); 
(2) a small governmental jurisdiction that is a government of a city, 
county, town, school district or special district with a population of 
less than 50,000; and (3) a small organization that is any not-for-
profit enterprise which is independently owned and operated and is not 
dominant in its field. Note that under the Antarctic Science, Tourism, 
and Conservation Act of 1996, governmental jurisdictions are not 
subject to this rulemaking.
    For purposes of assessing the potential impacts of the proposed 
rule on small entities, EPA assessed the potential impacts the proposed 
rule may have on the U.S.-based operators regulated under the interim 
final rule, that is, those for which the United States provided advance 
notice under Paragraph 5 of Article VII of the Treaty for proposed 
nongovernmental expeditions organized in or proceeding from the U.S. to 
the Antarctic Treaty area during the austral summer season 2000-2001, 
and other U.S.-based operators included in such documentation. The 
screening assessment indicated that of the twelve operators, four would 
qualify as small entities under the Small Business Administration 
definition. EPA has estimated that these small entities have annual 
operating expenditures (small organization) or annual sales (small 
business) ranging from about $100,000 to about $4,600,000. Based on 
costs estimated under the interim final rule, EPA estimated the 
potential impact on these small entities to range from an average of 
about $1,400 to about $4,200 for the 5-year period a multi-year 
environmental document could be in effect; this represents an impact in 
the range of less than 1% to about 1.4%. Even if the small entities did 
not take advantage of the additional cost-saving alternative provided 
in the multi-year provision of the proposed rule, the impact of the 
proposed rule would range from an average of about $2,300 to $6,800 for 
the same 5-year period. Of the four small entities subject to today's 
proposed rule, only one may be impacted significantly. Therefore, this 
proposed rule will not impact a substantial number of small entities. 
Moreover, the potential impact in that small entity arguably is not 
significant. In addition, as discussed below, EPA included in both the 
interim final rule and today's proposed rule cost-saving

[[Page 34753]]

alternatives that are available to all operators, including small 
operators. Under the interim final rule, all operators made use of the 
cost-saving alternatives and EPA expects them to continue using these 
alternatives and the additional alternative included in today's rule.
    Therefore, after considering the economic impacts of today's 
proposed rule on small entities, I certify that this action will not 
have a significant economic impact on a substantial number of small 
entities. In determining whether a rule has a significant economic 
impact on a substantial number of small entities, the impact of concern 
is any significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the proposed rule on small entities.'' 5 U.S.C. 603 
and 604. Thus, an agency may certify that a rule will not have a 
significant economic impact on a substantial number of small entities 
if the rule relieves regulatory burden, or otherwise has a positive 
economic effect on all of the small entities subject to the rule. The 
EPA believes that because this proposed rule only requires assessment 
of environmental impacts the effects on any small entities will be 
limited primarily to the cost of preparing such an analysis and that 
the requirements are no greater than necessary to ensure that the 
United States will be in compliance with its international obligations 
under the Protocol and the Treaty. The costs are likely to be minimal 
because it is EPA's view that the types of activities currently being 
carried out will typically be unlikely to have impacts that are more 
than minor or transitory assuming that activities will be carried out 
in accordance with the guidelines set forth in the ATCM Recommendation 
XVIII-1, Tourism and Non-Governmental Activities, the relevant 
provisions of other U.S. statutes, and Annexes II-V to the Protocol. 
Therefore, most activities will likely need only IEE documentation, the 
cost of which is minimal as shown in section VII, Paperwork Reduction 
Act. Further, as in the interim final rule, EPA has included provisions 
in this proposed rule which are available to all respondents, including 
small entities, which will have a positive effect by minimizing the 
cost of such an analysis. It has been EPA's experience that respondents 
used the cost reduction provisions in the interim final regulations. 
EPA anticipates that respondents will continue to use these provisions 
and the new provision that would allow submission of environmental 
documentation on a multi-year basis. The cost reduction provisions in 
this proposed rule include: (1) Material may be incorporated by 
referring to it in the environmental document with its content briefly 
described when the cited material is reasonably available to the EPA; 
(2) more than one proposed expedition by an operator may be included 
within one environmental document and may, if appropriate, include a 
single discussion of components of the environmental analysis which are 
applicable to some or all of the proposed expeditions; (3) one 
environmental document may also be used to address expeditions being 
carried out by more than one operator, provided that the environmental 
documentation includes the names of each operator for which the 
environmental documentation is being submitted pursuant to obligations 
under these regulations; and (4) one environmental document may be 
submitted by one or more operators for proposed expeditions for a 
period of up to five consecutive austral summer seasons, provided that 
the conditions of the multi-year environmental document, including the 
assessment of cumulative impacts, are unchanged. The multi-year 
provision would also allow operators to update basic information and to 
provide information on additional activities to supplement the multi-
year environmental document without having to revise and re-submit the 
entire document. Further, the EPA may waive or modify the deadlines of 
these regulations where EPA determines an operator is acting in good 
faith and that circumstances outside the control of the operator 
created delays, provided that environmental documentation fully meets 
deadlines under the Protocol. We have therefore concluded that today's 
proposed rule will relieve regulatory burden for all small entities. We 
continue to be interested in the potential impacts of the proposed rule 
on small entities and welcome comments on issues related to such 
impacts.

VI. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    Today's rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, local, or tribal 
governments or the private sector. The UMRA does not apply to rules 
that are necessary for the national security or the ratification or 
implementation of international treaty obligations. These regulations 
are necessary so that the United States will have the ability to 
implement its obligations under the Protocol on Environmental 
Protection to the Antarctic Treaty of 1959. Further, the UMRA excludes 
from the definitions of ``Federal intergovernmental mandate'' and 
``Federal private sector mandate'' duties that arise from conditions of 
federal assistance. Governmental jurisdictions including Federal, 
State, local and tribal governments and private sector operators 
receiving financial assistance from the United States government, are 
not subject to this rulemaking. In any event, EPA has determined that 
this rule does not contain a Federal mandate that may result in 
expenditures of $100 million or more for State, local, and tribal

[[Page 34754]]

governments, in the aggregate, or the private sector in any one year. 
For the private sector, there are currently less than 20 regulated 
operators and, because of the nature of business and the Antarctic 
location, this number is not expected to increase significantly. 
Moreover, this proposed rule provides alternatives that may be used by 
operators to reduce the burden and costs associated with the proposed 
rule. Expenditures for nongovernmental operators can be minimized 
through provisions in the rule that provide for the following 
approaches to submission of the environmental documentation required 
under the rule: (1) Material may be incorporated by referring to it in 
the environmental document with its content briefly described when the 
cited material is reasonably available to the EPA; (2) more than one 
proposed expedition by an operator may be included within one 
environmental document and may, if appropriate, include a single 
discussion of components of the environmental analysis which are 
applicable to some or all of the proposed expeditions; (3) one 
environmental document may also be used to address expeditions being 
carried out by more than one operator, provided that the environmental 
documentation includes the names of each operator for which the 
environmental documentation is being submitted pursuant to obligations 
under these regulations; and (4) one environmental document may be 
submitted by one or more operators for proposed expeditions for a 
period of up to five consecutive austral summer seasons, provided that 
the conditions of the multi-year environmental document, including the 
assessment of cumulative impacts, are unchanged. The multi-year 
provision would also allow operators to update basic information and to 
provide information on additional activities to supplement the multi-
year environmental document without having to revise and re-submit the 
entire document. Thus, today's proposed rule is not subject to the 
requirements of sections 202 and 205 of the UMRA.
    EPA has determined that this proposed rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments under section 203 of the UMRA. Governmental jurisdictions 
are not subject to this rulemaking.

VII. Paperwork Reduction Act

    The information collection requirements in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An 
Information Collection Request (ICR) document has been prepared by EPA 
(ICR No. 2020-0007) and a copy may be obtained from Sandy Farmer by 
mail at Collection Strategies Division; U.S. Environmental Protection 
Agency (2822); 1200 Pennsylvania Ave., NW., Washington, DC 20460, by 
email at <a href="/cdn-cgi/l/email-protection#680e091a050d1a461b09060c11280d180905090104460d1809460f071e"><span class="__cf_email__" data-cfemail="c2a4a3b0afa7b0ecb1a3aca6bb82a7b2a3afa3abaeeca7b2a3eca5adb4">[email protected]</span></a>, or by calling (202)260-2740. A 
copy may also be downloaded off the Internet at 
http://www.epa.gov/icr.
    Public Law 104-227, the Antarctic Science, Tourism, and 
Conservation Act of 1996 (the Act) amends the Antarctic Conservation 
Act of 1978, 16 U.S.C. 2401 et seq., to implement the provisions of the 
Protocol on Environmental Protection to the Antarctic Treaty of 1959. 
The Act provides that EPA must promulgate regulations to provide for 
the environmental impact assessment of nongovernmental activities, 
including tourism, for which the United States is required to give 
advance notice under Paragraph 5 of Article VII of the Treaty, and for 
coordination of the review of information regarding environmental 
impact assessment received from other Parties under the Protocol. This 
proposed 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 would be required to submit environmental 
documentation to EPA that evaluates the potential environmental impact 
of their proposed activities. If EPA has no comments, or if the 
documentation is satisfactorily revised in response to EPA's comments, 
and the operator does not receive a notice from EPA that the 
environmental documentation does not meet the requirements of Article 8 
and Annex I of the Protocol and the provisions of these regulations, 
the operator would have no further obligations pursuant to the 
applicable requirements of these proposed regulations provided that any 
appropriate measures, which may include monitoring, are put in place to 
assess and verify the impact of the activity. The type of environmental 
document required depends upon the nature and intensity of the 
environmental impacts that could result from the activity under 
consideration. Nongovernmental operators would be able to use the 
following approaches for submission of the environmental documentation 
required under the proposed rule: (1) Material may be incorporated by 
referring to it in the environmental document with its content briefly 
described when the cited material is reasonably available to the EPA; 
(2) more than one proposed expedition by an operator may be included 
within one environmental document and may, if appropriate, include a 
single discussion of components of the environmental analysis which are 
applicable to some or all of the proposed expeditions; (3) one 
environmental document may also be used to address expeditions being 
carried out by more than one operator, provided that the environmental 
documentation includes the names of each operator for which the 
environmental documentation is being submitted pursuant to obligations 
under these regulations; and (4) one environmental document may be 
submitted by one or more operators for proposed expeditions for a 
period of up to five consecutive austral summer seasons, provided that 
the conditions of the multi-year environmental document, including the 
assessment of cumulative impacts, are unchanged. The multi-year 
provision would also allow operators to update basic information and to 
provide information on additional activities to supplement the multi-
year environmental document without having to revise and re-submit the 
entire document. EPA anticipates that operators will make one submittal 
per year for all of their expeditions for that year and that most 
operators will be able to use the multi-year environmental 
documentation provision. EPA does not expect or anticipate receipt of 
any confidential information. No capital costs or operational and 
maintenance costs are anticipated to be incurred as a result of this 
ICR.
    Frequency of Reporting: Once per year.
    Affected Public: Businesses, other nongovernmental entities 
including for profit entities, and not-for-profit institutions.
    Number of Respondents: 13 to 14.
    Estimated Average Time Per Respondent: 29 to 185 Hours depending on 
the anticipated level of environmental documentation and the paperwork 
reduction provisions employed by the respondent.
    Total Annual Burden Hours: 377 to 562 Hours depending on the 
anticipated level of environmental documentation and the paperwork 
reduction provisions employed by the respondent.
    Estimated Average Cost Per Respondent to Prepare and Submit 
Environmental Documentation for the First Year: $2,668 to $13,405 
depending on the anticipated level of

[[Page 34755]]

environmental documentation and the paperwork reduction provisions 
employed by the respondent.
    Estimated Average Cost Per Respondent to Prepare and Submit 
Environmental Documentation for Subsequent Years: $1,844 to $14,117 
depending on the anticipated level of environmental documentation and 
the paperwork reduction provisions employed by the respondent.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
    Comments are requested on the Agency's need for this information, 
the accuracy of the provided burden estimates, and any suggested 
methods for minimizing respondent burden, including through the use of 
automated collection techniques. Send comments on the ICR to the 
Director, Collection Strategies Division; U.S. Environmental Protection 
Agency (2822); 1200 Pennsylvania Ave., NW., Washington, DC 20460; and 
to the Office of Information and Regulatory Affairs, Office of 
Management and Budget, 725 17th St., NW., Washington, DC 20503, marked 
``Attention: Desk Officer for EPA.'' Include the ICR number in any 
correspondence. Since OMB is required to make a decision concerning the 
ICR between 30 and 60 days after June 29, 2001, a comment to OMB is 
best assured of having its full effect if OMB receives it by July 30, 
2001. The final rule will respond to any OMB or public comments on the 
information collection requirements contained in this proposal.

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

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

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

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

X. Executive Order 13132, Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This proposed rule does not have federalism implications. It will 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. Governmental jurisdictions 
including Federal, State, local and tribal governments and private 
sector operators receiving financial assistance from the United States 
government, are not subject to this rulemaking. Further, the regulatory 
responsibilities of the EPA under this rule cannot be delegated to or 
otherwise made the responsibility of the States. Thus, Executive Order 
13132 does not apply to this rule.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed rule 
from State and local officials. By publishing and inviting comment on 
this proposed rule, EPA hereby is providing State and local officials 
notice and an opportunity for appropriate participation.

XI. Executive Order 13175, Tribal Consultation

    Executive Order 13175 took effect on January 6, 2001, and revokes 
Executive Order 13084 (Tribal Consultation) as of that date. EPA 
developed this proposed rule, however, during the period when Executive 
Order 13084 was in effect. Thus, EPA addressed tribal considerations 
under Executive Order 13084. EPA will analyze and fully comply with the 
requirements of Executive Order 13175 before promulgating the final 
rule.

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

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks,'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that EPA has reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, the Agency must evaluate the environmental health 
or safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective

[[Page 34756]]

and reasonably feasible alternatives considered by the Agency.
    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that are based on health or safety risks, such that 
the analysis required under section 5-501 of the Order has the 
potential to influence the regulation. This proposed rule is not 
subject to Executive Order 13045 because it does not establish an 
environmental standard intended to mitigate health or safety risks.

List of Subjects in 40 CFR Part 8

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

    Dated: June 22, 2001.
Christine Todd Whitman,
Administrator.

    Therefore, for the reasons set forth in the Preamble, EPA proposes 
to amend title 40 chapter I of the Code of Federal Regulations by 
revising part 8 as follows:

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

Sec.
8.1   Purpose.
8.2   Applicability and effect.
8.3   Definitions.
8.4   Preparation of environmental documents, generally.
8.5   Submission of environmental documents.
8.6   Preliminary environmental review.
8.7   Initial environmental evaluation.
8.8   Comprehensive environmental evaluation.
8.9   Measures to assess and verify environmental impacts.
8.10   Cases of emergency.
8.11   Prohibited acts, enforcement and penalties.
8.12   Coordination of reviews from other Parties.

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


Sec. 8.1  Purpose.

    (a) This part is issued pursuant to the Antarctic Science, Tourism, 
and Conservation Act of 1996. As provided in that Act, this part 
implements the requirements of Article 8 and Annex I to the Protocol on 
Environmental Protection to the Antarctic Treaty of 1959 and provides 
for:
    (1) The environmental impact assessment of nongovernmental 
activities, including tourism, for which the United States is required 
to give advance notice under paragraph 5 of Article VII of the 
Antarctic Treaty of 1959; and
    (2) Coordination of the review of information regarding 
environmental impact assessment received by the United States from 
other Parties under the Protocol.
    (b) The procedures in this part are designed to: ensure that 
nongovernmental operators identify and assess the potential impacts of 
their proposed activities, including tourism, on the Antarctic 
environment; that operators consider these impacts in deciding whether 
or how to proceed with proposed activities; and that operators provide 
environmental documentation pursuant to the Act and Annex I of the 
Protocol. These procedures are consistent with and implement the 
environmental impact assessment provisions of Article 8 and Annex I to 
the Protocol on Environmental Protection to the Antarctic Treaty.


Sec. 8.2  Applicability and effect.

    (a) This part is intended to ensure that potential environmental 
effects of nongovernmental activities undertaken in Antarctica are 
appropriately identified and considered by the operator during the 
planning process and that to the extent practicable, appropriate 
environmental safeguards which would mitigate or prevent adverse 
impacts on the Antarctic environment are identified by the operator.
    (b) The requirements set forth in this part apply to 
nongovernmental activities for which the United States is required to 
give advance notice under paragraph 5 of Article VII of the Antarctic 
Treaty of 1959: All nongovernmental expeditions to and within 
Antarctica organized in or proceeding from its territory.
    (c) This part does not apply to activities undertaken in the 
Antarctic Treaty area that are governed by the Convention on the 
Conservation of Antarctic Marine Living Resources or the Convention for 
the Conservation of Antarctic Seals. Persons traveling to Antarctica 
are subject to the requirements of the Marine Mammal Protection Act, 16 
U.S.C. 1371 et seq.


Sec. 8.3  Definitions.

    As used in this part:
    Act means 16 U.S.C. 2401 et seq., Public Law 104-227, the Antarctic 
Science, Tourism, and Conservation Act of 1996.
    Annex I refers to Annex I, Environmental Impact Assessment, of the 
Protocol.
    Antarctica means the Antarctic Treaty area; i.e., the area south of 
60 degrees south latitude.
    Antarctic environment means the natural and physical environment of 
Antarctica and its dependent and associated ecosystems, but excludes 
social, economic, and other environments.
    Antarctic Treaty area means the area south of 60 degrees south 
latitude.
    Antarctic Treaty Consultative Meeting (ATCM) means a meeting of the 
Parties to the Antarctic Treaty, held pursuant to Article IX(1) of the 
Treaty.
    Comprehensive Environmental Evaluation (CEE) means a study of the 
reasonably foreseeable potential effects of a proposed activity on the 
Antarctic environment, prepared in accordance with the provisions of 
this part and includes all comments received thereon. (See: 40 CFR 
8.8.)
    Environmental document or environmental documentation (Document) 
means a preliminary environmental review memorandum, an initial 
environmental evaluation, or a comprehensive environmental evaluation.
    Environmental impact assessment (EIA) means the environmental 
review process required by the provisions of this part and by Annex I 
of the Protocol, and includes preparation by the operator and U.S. 
government review of an environmental document, and public access to 
and circulation of environmental documents to other Parties and the 
Committee on Environmental Protection as required by Annex I of the 
Protocol.
    EPA means the Environmental Protection Agency.
    Expedition means any activity undertaken by one or more 
nongovernmental persons organized within or proceeding from the United 
States to or within the Antarctic Treaty area for which advance 
notification is required under Paragraph 5 of Article VII of the 
Treaty.
    Impact means impact on the Antarctic environment and dependent and 
associated ecosystems.
    Initial Environmental Evaluation (IEE) means a study of the 
reasonably foreseeable potential effects of a proposed activity on the 
Antarctic environment prepared in accordance with 40 CFR 8.7.
    More than a minor or transitory impact has the same meaning as the 
term ``significantly'' as defined in regulations under the National 
Environmental Policy Act at 40 CFR 1508.27.
    Operator or operators means any person or persons organizing a 
nongovernmental expedition to or within Antarctica.

[[Page 34757]]

    Person has the meaning given that term in section 1 of title 1, 
United States code, and includes any person subject to the jurisdiction 
of the United States except that the term does not include any 
department, agency, or other instrumentality of the Federal Government.
    Preliminary environmental review means the environmental review 
described under that term in 40 CFR 8.6.
    Preliminary Environmental Review Memorandum (PERM) means the 
documentation supporting the conclusion of the preliminary 
environmental review that the impact of a proposed activity will be 
less than minor or transitory on the Antarctic environment.
    Protocol means the Protocol on Environmental Protection to the 
Antarctic Treaty, done at Madrid October 4, 1991, and all annexes 
thereto which are in force for the United States.
    This part means 40 CFR part 8.


Sec. 8.4  Preparation of environmental documents, generally.

    (a) Basic information requirements. In addition to the information 
required pursuant to other sections of this part, all environmental 
documents shall contain the following:
    (1) The name, mailing address, and phone number of the operator;
    (2) The anticipated date(s) of departure of each expedition to 
Antarctica;
    (3) An estimate of the number of persons in each expedition;
    (4) The means of conveyance of expedition(s) to and within 
Antarctica;
    (5) Estimated length of stay of each expedition in Antarctica;
    (6) Information on proposed landing sites in Antarctica; and
    (7) Information concerning training of staff, supervision of 
expedition members, and what other measures, if any, that will be taken 
to avoid or minimize possible environmental impacts.
    (b) Preparation of an environmental document. Unless an operator 
determines and documents that a proposed activity will have less than a 
minor or transitory impact on the Antarctic environment, the operator 
will prepare an IEE or CEE in accordance with this part. In making the 
determination what level of environmental documentation is appropriate, 
the operator should consider, as applicable, whether and to what degree 
the proposed activity:
    (1) Has the potential to adversely affect the Antarctic 
environment;
    (2) May adversely affect climate or weather patterns;
    (3) May adversely affect air or water quality;
    (4) May affect atmospheric, terrestrial (including aquatic), 
glacial, or marine environments;
    (5) May detrimentally affect the distribution, abundance, or 
productivity of species, or populations of species of fauna and flora;
    (6) May further jeopardize endangered or threatened species or 
populations of such species;
    (7) May degrade, or pose substantial risk to, areas of biological, 
scientific, historic, aesthetic, or wilderness significance;
    (8) Has highly uncertain environmental effects, or involves unique 
or unknown environmental risks; or
    (9) Together with other activities, the effects of any one of which 
is individually insignificant, may have at least minor or transitory 
cumulative environmental effects.
    (c) Type of environmental document. The type of environmental 
document required under this part depends upon the nature and intensity 
of the environmental impacts that could result from the activity under 
consideration. A PERM must be prepared by the operator to document the 
conclusion of the operator's preliminary environmental review that the 
impact of a proposed activity on the Antarctic environment will be less 
than minor or transitory. (See Sec. 8.6.) An IEE must be prepared by 
the operator for proposed activities which may have at least (but no 
more than) a minor or transitory impact on the Antarctic environment. 
(See Sec. 8.7.) A CEE must be prepared by the operator if an IEE 
indicates, or if it is otherwise determined, that a proposed activity 
is likely to have more than a minor or transitory impact on the 
Antarctic environment (See Sec. 8.8.)
    (d) Incorporation of information, consolidation of environmental 
documentation, and multi-year environmental documentation. (1) An 
operator may incorporate material into an environmental document by 
referring to it in the document when the effect will be to reduce 
paperwork without impeding the review of the environmental document by 
EPA and other federal agencies. The incorporated material shall be 
cited and its content briefly described. No material may be 
incorporated by referring to it in the document unless it is reasonably 
available to the EPA.
    (2) Provided that environmental documentation complies with all 
applicable provisions of Annex I to the Protocol and this part and is 
appropriate in light of the specific circumstances of the operator's 
proposed expedition or expeditions, an operator may include more than 
one proposed expedition within one environmental document and one 
environmental document may also be used to address expeditions being 
carried out by more than one operator provided that the environmental 
document indicates the names of each operator for which the 
environmental documentation is being submitted pursuant to obligations 
under this part.
    (e) Multi-year environmental documentation. (1) Provided that 
environmental documentation complies with all applicable provisions of 
Annex I to the Protocol and this part, an operator may submit 
environmental documentation for proposed expeditions for a period of up 
to five consecutive austral summer seasons, provided that the 
conditions of the multi-year environmental document, including the 
assessment of cumulative impacts, are unchanged and meets the 
provisions of paragraph (e)(1)(i) through (iii) of this section.
    (i) The operator shall identify the environmental documentation 
submitted for multi-year documentation purposes in the first year it is 
submitted. If the operator, or operators, fail to make this initial 
identification to EPA, this provision shall not be in effect although 
subsequent years' submissions by the operator, or operators, may use 
this environmental documentation as provided in paragraph (d)(1) and 
(2) of this section.
    (ii) In subsequent years, up to a total maximum of five years, the 
operator, or operators, shall reference the multi-year documentation 
identified initially if it is necessary to update the basic information 
requirements listed in paragraph (a) of this section.
    (iii) An operator, or operators, may supplement a multi-year 
environmental document for an additional activity or activities by 
providing information regarding the proposed activity in accordance 
with the appropriate provisions of this part. The operator, or 
operators, shall identify this submission as a proposed supplement to 
the multi-year documentation in effect. Addition of the supplemental 
information shall not extend the period of the multi-year environmental 
documentation beyond the time period associated with the documentation 
as originally submitted.
    (2) Multi-year environmental documentation may include more than 
one proposed expedition within the environmental document and the 
multi-year environmental document may also be used to address 
expeditions being carried out by more than one operator

[[Page 34758]]

provided that the environmental document indicates the names of each 
operator for which the environmental documentation is being submitted 
pursuant to obligations under this part.
    (3) The schedules for multi-year environmental documentation depend 
on the level of the environmental document and shall be the same as the 
schedules for comparable environmental documentation submitted on an 
annual basis; e.g., a multi-year PERM shall comply with the schedule in 
Sec. 8.6, a multi-year IEE shall comply with the schedule in Sec. 8.7, 
and a multi-year CEE shall comply with the schedule in Sec. 8.8. These 
schedules apply to the operator's submission of the initial multi-year 
environmental document; the operator's subsequent annual submissions 
pursuant to paragraph (e)(1)(ii) and (iii) of this section; EPA's 
review, in consultation with other interested federal agencies, and 
comment on the multi-year environmental documentation and subsequent 
annual submissions; and a finding the EPA may make, with the 
concurrence of the National Science Foundation, that the environmental 
documentation submitted does not meet the requirements of Article 8 and 
Annex I of the Protocol and the provisions of this part.


Sec. 8.5  Submission of environmental documents.

    (a) An operator shall submit environmental documentation to the EPA 
for review. The EPA, in consultation with other interested federal 
agencies, will carry out a review to determine if the submitted 
environmental documentation meets the requirements of Article 8 and 
Annex I of the Protocol and the provisions of this part. The EPA will 
provide its comments, if any, on the environmental documentation to the 
operator and will consult with the operator regarding any suggested 
revisions. If EPA has no comments, or if the documentation is 
satisfactorily revised in response to EPA's comments, and the operator 
does not receive a notice from EPA that the environmental documentation 
does not meet the requirements of Article 8 and Annex I of the Protocol 
and the provisions of this part, the operator will have no further 
obligations pursuant to the applicable requirements of this part 
provided that any appropriate measures, which may include monitoring, 
are put in place to assess and verify the impact of the activity. 
Alternatively, following final response from the operator, the EPA, in 
consultation with other federal agencies and with the concurrence of 
the National Science Foundation, will inform the operator that EPA 
finds that the environmental documentation does not meet the 
requirements of Article 8 and Annex I of the Protocol and the 
provisions of this part. If the operator then proceeds with the 
expedition without fulfilling the requirements of this part, the 
operator is subject to enforcement proceedings pursuant to sections 7, 
8, and 9 of the Antarctic Conservation Act, as amended by the Act; 16 
U.S.C. 2407, 2408, 2409, and 45 CFR part 672.
    (b) The EPA may waive or modify deadlines pursuant to this part 
where EPA determines an operator is acting in good faith and that 
circumstances outside the control of the operator created delays, 
provided that the environmental documentation fully meets deadlines 
under the Protocol.


Sec. 8.6  Preliminary environmental review.

    (a) Unless an operator has determined to prepare an IEE or CEE, the 
operator shall conduct a preliminary environmental review that assesses 
the potential direct and reasonably foreseeable indirect impacts on the 
Antarctic environment of the proposed expedition. A Preliminary 
Environmental Review Memorandum (PERM) shall contain sufficient detail 
to assess whether the proposed activity may have less than a minor or 
transitory impact, and shall be submitted to the EPA for review no less 
than 180 days before the proposed departure of the expedition. The EPA, 
in consultation with other interested federal agencies, will review the 
PERM to determine if it is sufficient to demonstrate that the activity 
will have less than a minor or transitory impact or whether additional 
environmental documentation, i.e., an IEE or CEE, is required to meet 
the obligations of Article 8 and Annex I of the Protocol. The EPA will 
provide its comments to the operator within fifteen (15) days of 
receipt of the PERM, and the operator shall have seventy-five (75) days 
to prepare a revised PERM or an IEE, if necessary. Following the final 
response from the operator, EPA may make a finding that the 
environmental documentation submitted does not meet the requirements of 
Article 8 and Annex I of the Protocol and the provisions of this part. 
This finding will be made with the concurrence of the National Science 
Foundation. If EPA does not provide such notice within thirty (30) 
days, the operator will be deemed to have met the requirements of this 
part provided that any required procedures, which may include 
appropriate monitoring, are put in place to assess and verify the 
impact of the activity.
    (b) If EPA recommends an IEE and one is prepared and submitted 
within the seventy-five (75) day response period, it will be reviewed 
under the time frames set out for an IEE in 40 CFR 8.7. If EPA 
recommends a CEE and one is prepared, it will be reviewed under the 
time frames set out for a CEE in 40 CFR 8.8.


Sec. 8.7  Initial environmental evaluation.

    (a) Submission of IEE to the EPA. Unless a PERM has been submitted 
pursuant to 40 CFR 8.6 which meets the environmental documentation 
requirements under Article 8 and Annex I to the Protocol and the 
provisions of this part or a CEE is being prepared, an IEE shall be 
submitted by the operator to the EPA no fewer than ninety (90) days 
before the proposed departure of the expedition.
    (b) Contents. An IEE shall contain sufficient detail to assess 
whether a proposed activity may have more than a minor or transitory 
impact on the Antarctic environment and shall include the following 
information:
    (1) A description of the proposed activity, including its purpose, 
location, duration, and intensity; and
    (2) Consideration of alternatives to the proposed activity and any 
impacts that the proposed activity may have on the Antarctic 
environment, including consideration of cumulative impacts in light of 
existing and known proposed activities.
    (c) Further environmental review. (1) The EPA, in consultation with 
other interested federal agencies, will review an IEE to determine 
whether the IEE meets the requirements under Annex I to the Protocol 
and the provisions of this part. The EPA will provide its comments to 
the operator within thirty (30) days of receipt of the IEE, and the 
operator will have forty-five (45) days to prepare a revised IEE, if 
necessary. Following the final response from the operator, EPA may make 
a finding that the documentation submitted does not meet the 
requirements of Article 8 and Annex I of the Protocol and the 
provisions of this part. This finding will be made with the concurrence 
of the National Science Foundation. If such a notice is required, EPA 
will provide it within fifteen (15) days of receiving the final IEE 
from the operator or, if the operator does not provide a final IEE, 
within sixty (60) days following EPA's comments on the original IEE. If 
EPA does not provide notice within these time limits, the operator will 
be deemed to have met the requirements of this part provided that any 
required procedures, which may include appropriate

[[Page 34759]]

monitoring, are put in place to assess and verify the impact of the 
activity.
    (2) If a CEE is required, the operator must adhere to the time 
limits applicable to such documentation. (See: 40 CFR 8.8.) In this 
event EPA, at the operator's request, will consult with the operator 
regarding possible changes in the proposed activity which would allow 
preparation of an IEE.


Sec. 8.8  Comprehensive environmental evaluation.

    (a) Preparation of a CEE. Unless a PERM or an IEE has been 
submitted and determined to meet the environmental documentation 
requirements of this part, the operator shall prepare a CEE. A CEE 
shall contain sufficient information to enable informed consideration 
of the reasonably foreseeable potential environmental effects of a 
proposed activity and possible alternatives to that proposed activity. 
A CEE shall include the following:
    (1) A description of the proposed activity, including its purpose, 
location, duration and intensity, and possible alternatives to the 
activity, including the alternative of not proceeding, and the 
consequences of those alternatives;
    (2) A description of the initial environmental reference state with 
which predicted changes are to be compared and a prediction of the 
future environmental reference state in the absence of the proposed 
activity;
    (3) A description of the methods and data used to forecast the 
impacts of the proposed activity;
    (4) Estimation of the nature, extent, duration and intensity of the 
likely direct impacts of the proposed activity;
    (5) A consideration of possible indirect or second order impacts 
from the proposed activity;
    (6) A consideration of cumulative impacts of the proposed activity 
in light of existing activities and other known planned activities;
    (7) Identification of measures, including monitoring programs, that 
could be taken to minimize or mitigate impacts of the proposed activity 
and to detect unforeseen impacts and that could provide early warning 
of any adverse effects of the activity as well as to deal promptly and 
effectively with accidents;
    (8) Identification of unavoidable impacts of the proposed activity;
    (9) Consideration of the effects of the proposed activity on the 
conduct of scientific research and on other existing uses and values;
    (10) An identification of gaps in knowledge and uncertainties 
encountered in compiling the information required under this section;
    (11) A non-technical summary of the information provided under this 
section; and
    (12) The name and address of the person or organization which 
prepared the CEE and the address to which comments thereon should be 
directed.
    (b) Submission of draft CEE to the EPA and circulation to other 
parties. (1) Any operator who plans a nongovernmental expedition that 
would require a CEE must submit a draft of the CEE by December 1 of the 
preceding year. Within fifteen (15) days of receipt of the draft CEE, 
EPA will: Send it to the Department of State which will circulate it to 
all Parties to the Protocol and forward it to the Committee for 
Environmental Protection established by the Protocol, and publish 
notice of receipt of the CEE and request for comments on the CEE in the 
Federal Register, and will provide copies to any person upon request. 
The EPA will accept public comments on the CEE for a period of ninety 
(90) days following notice in the Federal Register. The EPA, in 
consultation with other interested federal agencies, will evaluate the 
CEE to determine if the CEE meets the requirements under Article 8 and 
Annex I to the Protocol and the provisions of this part and will 
transmit its comments to the operator within 120 days following 
publication in the Federal Register of the notice of availability of 
the CEE.
    (2) The operator shall send a final CEE to EPA at least seventy-
five (75) days before commencement of the proposed activity in the 
Antarctic Treaty area. The CEE must address and must include (or 
summarize) any comments on the draft CEE received from EPA, the public, 
and the Parties. Following the final response from the operator, the 
EPA will inform the operator if EPA, with the concurrence of the 
National Science Foundation, makes the finding that the environmental 
documentation submitted does not meet the requirements of Article 8 and 
Annex I of the Protocol and the provisions of this part. This 
notification will occur within fifteen (15) days of submittal of the 
final CEE by the operator if the final CEE is submitted by the operator 
within the time limits set out in this section. If no final CEE is 
submitted or the operator fails to meet these time limits, EPA will 
provide such notification sixty (60) days prior to departure of the 
expedition. If EPA does not provide such notice, the operator will be 
deemed to have met the requirements of this part provided that 
procedures, which include appropriate monitoring, are put in place to 
assess and verify the impact of the activity. The EPA will transmit the 
CEE, along with a notice of any decisions by the operator relating 
thereto, to the Department of State which shall circulate it to all 
Parties no later than sixty (60) days before commencement of the 
proposed activity in the Antarctic Treaty area. The EPA will also 
publish a notice of availability of the final CEE in the Federal 
Register.
    (3) No final decision shall be taken to proceed with any activity 
for which a CEE is prepared unless there has been an opportunity for 
consideration of the draft CEE by the Antarctic Treaty Consultative 
Meeting on the advice of the Committee for Environmental Protection, 
provided that no expedition need be delayed through the operation of 
paragraph 5 of Article 3 to Annex I of the Protocol for longer than 15 
months from the date of circulation of the draft CEE.
    (c) Decisions based on CEE. The decision to proceed, based on 
environmental documentation that meets the requirements under Article 8 
and Annex I to the Protocol and the provisions of this part, rests with 
the operator. Any decision by an operator on whether to proceed with or 
modify a proposed activity for which a CEE was required shall be based 
on the CEE and other relevant considerations.


Sec. 8.9  Measures to assess and verify environmental impacts.

    (a) The operator shall conduct appropriate monitoring of key 
environmental indicators as proposed in the CEE to assess and verify 
the potential environmental impacts of activities which are the subject 
of a CEE. The operator may also need to carry out monitoring in order 
to assess and verify the impact of an activity for which an IEE has 
been prepared.
    (b) All proposed activities for which an IEE or CEE has been 
prepared shall include procedures designed to provide a regular and 
verifiable record of the impacts of these activities, in order, inter 
alia, to:
    (1) Enable assessments to be made of the extent to which such 
impacts are consistent with the Protocol; and
    (2) Provide information useful for minimizing and mitigating those 
impacts, and, where appropriate, information on the need for 
suspension, cancellation, or modification of the activity.


Sec. 8.10  Cases of emergency.

    This part shall not apply to activities taken in cases of emergency 
relating to the safety of human life or of ships, aircraft, equipment 
and facilities of high value, or the protection of the environment, 
which require an activity

[[Page 34760]]

to be undertaken without completion of the procedures set out in this 
part. Notice of any such activities which would have otherwise required 
the preparation of a CEE shall be provided within fifteen (15) days to 
the Department of State, as provided below, for circulation to all 
Parties to the Protocol and to the Committee on Environmental 
Protection, and a full explanation of the activities carried out shall 
be provided within forty-five (45) days of those activities. 
Notification shall be provided to: The Director, The Office of Oceans 
Affairs, OES/OA, Room 5805, Department of State 2201 C Street, NW., 
Washington, DC 20520-7818.


Sec. 8.11  Prohibited acts, enforcement and penalties.

    (a) It shall be unlawful for any operator to violate this part.
    (b) An operator who violates any of this part is subject to 
enforcement, which may include civil and criminal enforcement 
proceedings, and penalties, pursuant to sections 7, 8, and 9 of the 
Antarctic Conservation Act, as amended by the Act; 16 U.S.C. 2407, 
2408, 2409, and 45 CFR part 672.


Sec. 8.12  Coordination of reviews from other Parties.

    (a) Upon receipt of a draft CEE from another Party, the Department 
of State shall publish notice in the Federal Register and shall 
circulate a copy of the CEE to all interested federal agencies. The 
Department of State shall coordinate responses from federal agencies to 
the CEE and shall transmit the coordinated response to the Party which 
has circulated the CEE. The Department of State shall make a copy of 
the CEE available upon request to the public.
    (b) Upon receipt of the annual list of IEEs from another Party 
prepared in accordance with Article 2 of Annex I and any decisions 
taken in consequence thereof, the Department of State shall circulate a 
copy to all interested federal agencies. The Department of State shall 
make a copy of the list of IEEs prepared in accordance with Article 2 
and any decisions taken in consequence thereof available upon request 
to the public.
    (c) Upon receipt of a description of appropriate national 
procedures for environmental impact statements from another Party, the 
Department of State shall circulate a copy to all interested federal 
agencies. The Department of State shall make a copy of these 
descriptions available upon request to the public.
    (d) Upon receipt from another Party of significant information 
obtained, and any action taken in consequence therefrom from procedures 
put in place with regard to monitoring pursuant to Articles 2(2) and 5 
of Annex I to the Protocol, the Department of State shall circulate a 
copy to all interested federal agencies. The Department of State shall 
make a copy of this information available upon request to the public.
    (e) Upon receipt from another Party of a final CEE, the Department 
of State shall circulate a copy to all interested federal agencies. The 
Department of State shall make a copy available upon request to the 
public.

[FR Doc. 01-16436 Filed 6-28-01; 8:45 am]
BILLING CODE 6560-50-U


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